Determination of the procedure for using an apartment in shared ownership. housing issue

2024 Author: Howard Calhoun | [email protected]. Last modified: 2023-12-17 10:16

In life there are situations in which people who are strangers to each other are forced to live in the same territory. These can be, for example, spouses who divorced, but continue to live in the same apartment, since they have no other housing, several heirs who got an apartment from the testator, and these are not always relatives, and so on.

Unwilling to give up their part of the housing, they have to live together. On this basis, disputes, misunderstandings, reproaches, claims and scandals often arise. The way out of this situation may be to determine the procedure for using an apartment in shared ownership. We will talk about this in the article.

When do you need a housing order?

Usually, shares in an apartment belong to relatives who inherited it, or spouses who divorced. In both cases, citizens are not actually family members and do not run a joint household. This raises the question of definingthe procedure for using an apartment in shared ownership.

It is best to establish this order yourself on a voluntary basis. For this purpose, an agreement is concluded in writing, where the owners stipulate all the moments of using the apartment. The best option would be to have this document certified by a notary.

For example, Alexander and Svetlana Ivanov lived in an apartment that they bought together after the wedding. A few years later, the couple separated and divided the property. However, neither Alexander nor Svetlana had anywhere to go to live, and redemption of the spouse's share was also impossible for them. In this regard, they had to live together in the same territory.

The apartment was a two-room apartment with separate rooms. Therefore, they had no problems using these premises. But with regard to the kitchen and bathroom, they could not agree. Alexander often brought friends home with whom he drank alcohol. Moreover, he did not take them to his room, but settled down with them in the kitchen. Naturally, Svetlana did not like this. But Alexander also had dissatisfaction with the fact that Svetlana was drying things in the bathroom. As a result, the former spouses had to conclude an agreement, according to which Alexander stopped bringing friends and staying in the kitchen, and Svetlana no longer dried clothes in the bathroom.

How can fractional ownership be used?

The establishment of the procedure for using an apartment in shared ownership is influenced by various factors, in particular:

• Shares.
• Number of living rooms. If there are enough of them for each of the owners - this is one thing, and when there are more owners, then it is much more difficult to determine the appropriate order.
• Number of residents. So, if there are two of them (former spouses who are owners), but a minor child lives with them, then the wife is allocated a room with more square meters.
• Do residents have other accommodations.
• The presence of family ties between residents.
• Layout. Often in apartments - walk-through rooms. Naturally, no one wants to have their personal space constantly invaded by other tenants.

The ideal is the case in which the number of separate rooms is not less than the number of owners. Then each of them is allocated a room, and common areas continue to be shared. In this case, a communal apartment is obtained.

But if the apartment is in shared ownership and it is not possible to allocate a room to each tenant, for example, in the case of a odnushka apartment, then it is best for one owner to buy out the share of another. Usually, the one who owns a large share redeems a smaller one. But there may be other redemption options. Also, the owners can agree, for example, to use the apartment periodically. Then, during a specified period, one of them lives there, who then leaves and another owner moves into the apartment for a certain period of time.

How to determine the appropriate order?

When determining the orderthe use of an apartment in shared ownership must comply with the rules that the tenants establish for themselves and among themselves. They may be established or established.

The first option occurs when a certain way has developed between the owners of both the operation of rooms and common areas (kitchen, bathroom, bathroom, hallway). In this case, this order suits everyone, and no one wants to change anything.

The situation is more complicated in cases where the owners have claims against each other. Then you need to try to resolve issues through negotiations. If you can’t agree on anything, then you have to go to court.

Determining the procedure for using an apartment in shared ownership means that each of the owners owns a certain room or part of it, basically in proportion to their share of ownership. Rules for the use of the kitchen, bathroom and other common areas are also stipulated.

Of course, it is best if the share of each of the owners of the apartment is allocated in kind or the share is redeemed. But this is not always achievable. Sometimes it is necessary to carry out redevelopment when allocating. In the case of a house, it is much easier to resolve the issue than with an apartment, when it is almost impossible to do this. In addition, the owners do not always have the money to redeem their shares. Therefore, they have to agree on an order that suits everyone.

There are 2 options for allocating a share in kind in an apartment. This is:

• Reaching a voluntary agreement.
• Solving the issue through the courtorgan.

It is much better to negotiate with each other on your own, as this helps to maintain good relations between residents. It will also take much less time than going to court. In this case, the tenants themselves decide which premises will go to whom and how the common areas will be used. The agreements reached are consolidated by concluding an agreement in writing.

If it is not possible to agree, then the parties have no choice but to go to court. But even in this case, it is necessary to follow the procedure in which pre-trial settlement of the dispute should be followed. To this end, you need to contact other owners with a proposal to conclude an agreement. It is better to send the document by registered mail via mail. It is allowed to transfer it personally, but the addressee must sign the fact of receipt. This is evidence of an attempt to resolve the issue peacefully.

The agreement does not have to be notarized. You can even limit yourself to verbal agreements. However, if one of the parties violates the agreements reached, it will be very difficult to prove this. In addition, the parties may agree on the sale of an apartment in shared ownership.

Conclusion of an agreement

If the owners have already been living together for some time, a certain procedure for using the premises has already been established and there are no complaints against each other, then this indicates that verbal agreements have been reached. But in order to insure yourself for the future, for example, if someone decides to changeestablished way of life, it is worth concluding an agreement in writing. To this end, the text spells out the terms on which premises each tenant will use and how the common areas will be used.

The document will take effect after each of the tenants puts his signature on the agreement. It is also possible to contact a notary. Then the document will receive even more "weight". But in life, such agreements, unfortunately, are rarely concluded. In the presence of peace, this simply does not arise, and in the presence of mutual reproaches and claims, the parties, as a rule, cannot agree and go to court.

If it is decided to sell the apartment or buy out part of it, a contract for the sale of a share in the apartment is concluded. This often results in a debate over cost. To avoid disputes, it is worth calling a real estate appraiser who will set the real price.

Determining the order through the court

The main condition for establishing the appropriate order is the location of the apartment in common shared ownership. The share in the room, communal apartment is already divided. There, each of the owners is the sole owner of a separate room or part of it. Therefore, you can go to court only to determine the order of operation of the kitchen, bathroom and other similar places.

Another condition is that only the owner of the share of the apartment can file a claim. Thus, even if a citizen is registered in an apartment, but is not legally a co-owner, he does not have the right to go to court.

Action algorithm

An applicant filing a claim with a court for the disposal of property in shared ownership must follow a certain procedure, in particular:

1. Make an attempt to amicably resolve the dispute by contacting the other party or parties with a proposal to get out of this situation, including by concluding a contract for the sale of a share in an apartment.
2. If that doesn't help, you can start preparing for the trial. To this end, you need to collect the required documents.
3. Next, a claim is made. It is better to contact an experienced lawyer with this request, since errors in the preparation of this document are fraught with a refusal to accept the application for consideration or lead to a delay in the trial.
4. Take part in the trial. The process may take up to one month. Therefore, in the absence of time to attend meetings, this right can also be entrusted to a lawyer.
5. Appeal against the decision of the court. This is done if it did not suit the party.
6. Get a court decision and a writ of execution in your hands. Sometimes the defendants do not want to comply with the decision. Then the plaintiff should apply to the bailiff service. The main document on which these specialists act is the writ of execution. On its basis, they open proceedings and force the defendant to comply with the court decision.

Documents

The following documents should be submitted to the court along with the claim:

• Several copies of the statement of claim (one for the court, others for the participants in the process andone for myself).
• Copy of ID.
• Extract from USRN.
• Document confirming the right of common shared ownership of the apartment.
• Documents confirming an attempted amicable settlement of the dispute.
• Technical passport for real estate.
• Receipt with paid state duty.

If it is planned to sell the share in the future, but the plaintiff wants to first formalize the order of use, he will need a document from the real estate appraiser.

Timing

The period of consideration of the application depends on many factors, in particular:

• Attendance of participants to the meeting.
• Opposite position.
• Availability of required documents.
• Other points.

Anyway, the lawsuit lasts at least 2 months.

Cost

According to Art. 333.19 of the Tax Code, the amount of the state fee for this dispute is 300 rubles. The required amount will increase if the plaintiff wishes to contact a lawyer. So, drawing up an application can cost from 1 to 3 thousand rubles. Separately, you will need to pay for the representation of the interests of the plaintiff by a lawyer.

Claim

The law does not establish the form of the claim. At the same time, strict requirements are imposed on its compilation, which are set out in Art. 131 Code of Civil Procedure of the Russian Federation. In particular, it should contain the following information:

• Court name.
• Personal data of the parties.
• Document name.
• Bases for the emergence of ownership of a share in the premises.
• Shares.
• Description of the room, indicating the number of rooms, their location, description, area of utility rooms, etc.
• The essence of the dispute.
• Indicating pre-trial settlement attempts.
• Claims.
• List of attached documents.
• Date and signature.

Legal Framework

When considering such claims, the courts are guided by the following provisions:

• Art.35 of the Main Law of the country (Constitution).
• Art.247 of the Civil Code of the Russian Federation.
• Art.307 of the Civil Code of the Russian Federation.
• Art.3 RF LC.
• Art.30 RF LC.

Also, the decision of the court depends on the specific circumstances of the case.

Judicial example: intrusion into foreign territory

Citizen Nikolai Petrov is the owner of a share in the apartment. In addition to him, two other co-owners live in it. They periodically enter Nikolai's room without permission. At the same time, they refuse to conclude any agreements. Petrov filed a lawsuit demanding that the appropriate procedure be enforced.

Since Nikolai had previously attempted to conclude an agreement, the court considered the case and ruled in favor of the plaintiff. The allocated room is his personal property, and no one has the right to enter it, just as Nikolai cannot enter the premises belonging to other residents without an invitation. There are no restrictions on shared spaces.

Example from the trialpractices: "playing on the nerves"

If one of the spouses does not need a room, because he has another place where he lives, but he applied only to tickle the nerves of the other party, the court is unlikely to rule in favor of the plaintiff. Thus, if one of the spouses does not live in an apartment, then the other has the right to take a room with better characteristics.

For example, after the divorce, Natalya Petrova stayed in a kopeck piece, which was purchased with her ex-husband Nikolai. The latter moved into a odnushka, bought by him before marriage. One of the two rooms of the joint apartment is a walk-through, and the other has a larger area compared to the first. It turns out that the rooms are clearly unequal. However, Nikolai, who had moved into his single room, filed an application with the court demanding that a larger room remain at his disposal. At the same time, he did not want to sell his share, and also did not live in the disputed apartment. Nikolai's ex-wife, Natalya Petrova, filed a lawsuit. She asked the court to determine her living in a comfortable large room. The court granted the plaintiff's claims.

Jurisprudence example: Living with a daughter

Spouses Svetlana and Alexander Ivanov purchased a two-room apartment with an area of 60 square meters. During their married life, they had a daughter. The couple decided to dissolve the marriage, after which each of them got a separate room. They did not manage to part, because the ex-husband did not sell a share in the apartment of a minor childagreed

Alexander occupied a large room, the area of which is 20 square meters. m. At the same time, Svetlana and her daughter had to huddle in a small room. Svetlana's requests to change rooms had no effect on Alexander. In this regard, Svetlana had to go to court with a demand to transfer a room of 20 square meters to her for use. m, where the former spouse is located. The court, of course, took the side of the plaintiff, and ordered Alexander to transfer the large room to the use of Svetlana and her daughter.

Allotment of share

If the issue is resolved through the court, then you need to be prepared for great difficulties. It is much easier to allocate a share in the case of a private house. Particular difficulties arise with a small area of \u200b\u200bthe premises, but a large number of owners. The allocation of a share in kind is associated with various problems. When considering a case, the court proceeds from the specific circumstances. In particular, factors such as:

• Age.
• Having or not having a child.
• Professional activities of participants in the process.
• Disability.
• Other factors.

One way or another, when deciding how to register a share in an apartment as a property, the answer will be unequivocal: going to court.

If the apartment is municipal

In the current legislation there are no rules on the procedure for the use of municipal housing by tenants. The procedure discussed earlier applies only to housing that belongs to individuals by right of ownership. The requirement to transfer the use of specificpremises in a municipal apartment is possible only if the social lease agreement is changed.

According to Part 2 of Art. 69 of the Housing Code of the Russian Federation, the tenants of such housing are equal in terms of rights and obligations. Therefore, each of these persons enjoys the premises on equal terms. In this regard, it is not possible to determine the order of use of the premises. If the tenants cannot agree, then there is only one way out of this situation: to issue an apartment in private ownership. Sometimes tenants wonder if it is possible to privatize a share in an apartment. Such a question is incorrect. In public housing initially there are no shares. They will appear only when the apartment belongs to the tenants by right of private property. So the answer is no.

Conclusion

If the tenants are in good neighborly relations, determining for them the procedure for using the premises, making a decision to sell an apartment in shared ownership is not difficult. But with strained relationships, everything is different. Often they are resolved only in court. Such litigation, as a rule, is not easy for the parties. To do this, it is necessary to acquire a sufficient evidence base, rely on established practice, and know the procedural rules. Therefore, the best option in this case is to contact an experienced lawyer who will do everything to defend the rights of the applicant in accordance with the law.