In shared ownership today is about95% of apartments. Various transactions are made with immovable objects. As a result of some of them, the share of property 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 onlywhen realizing 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.
A small proportion of the apartment is less than 1/4 of itarea 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. 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 in the apartment creates certain difficulties. First of all, they are connected with the impossibility of isolating it.
Previously, it was allowed to buy out a share in the apartment, if it could not be separated in kind. This procedure was carried out under Art. 247. This is what this rule says:
In some cases, an allocation is not possible withoutdisproportionate damage to an 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 carried out without its consent. After receiving the money, the subject can no longer claim the common property.
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, few people paid attention. As a result, the repurchase of a share in the apartment has become 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 arose for the manifestation of corruption.
Recognition of an insignificant share - procedurerather laborious 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 submitted to the district court located at the address 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 repurchasing a share, the legislator proceeded from the exclusivity of such situations.
Accordingly, the first instance can make a decision in favor of the plaintiff not in all cases, but only in the presence of a number of circumstances. They include:
In practice, take a decision by analogy inthe situation in question will be extremely problematic. 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 owner of the share in the apartment meets withthe need to determine the price of their virtual property. For this, the court initiates the evaluation process. Experts proposed a discount scheme. In accordance with it, any share was valued at 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. The participants agreed with each other, sold the apartment, and the money was shared in accordance with the available shares.
However, it is not always possible to achieve thiscompromise. At the same time, problematic shares are, rather, exceptions. In this regard, the virtual area should be assessed in relation to the whole real estate. However, there was also a place for corruption. Let's say there is an apartment with shares of 7/8 and 1/8. The latter 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 speaks to a lawyer. The lawyer makes a claim against the owner of 1/8 about its 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 claimant will win. As a result:
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.
At present, cases of redemption of insignificantshares are classified as losing ones. Moreover, such transactions are impossible today. In 2012, the Armed Forces, Mosoblsud and the Moscow City Court explained that a minor share can be bought 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.
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 indefinite 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 disparityvirtual 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 require introduction. 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 "raven slobodki", where neither previous nor new users can get along. Conflicts begin in which the strongest wins. However, he is not always the one who has 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 court of the Moscow region asked a citizen,which was a share owner of the apartment, as well as the defendant. At the same time, the applicant was 1/40. The defendant owned 1/2. The disputed 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, turned to the Supreme Court. 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 thatThe plaintiff 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 the introduction, 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 presented 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 can dispose of and own his property. However, the disputed apartment belongs to four owners. It follows that 30 articles can not be used alone. Together with it it is necessary to use another norm. It is 247 articles of the Civil Code. It says that it is allowed to dispose of shared property only by agreement of the participants. If it is not reached, then you should go to court. When studying the materials of the case, the latter found that the relevant 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 it is impossible to allocate them for use. The district court, in turn, did not take into account this decision.
Sun stressed that there was no decision in the decisionOne important circumstance was 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 realization by the owner 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 denied 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 shareholders. 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 the disputed real estate has never been used as a plaintiff, unlike the defendant. The latter not only owns a large part of the facility, 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 that bypass the norms with an unlawful purpose, other unfair behavior are prohibited.
The Court emphasized that thecircumstances allow 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 the apartment, owning half the object. Sun canceled all past decisions, and the case was sent for revision. As a result, Mosoblsud denied the plaintiff.
Any real estate transaction involves the conclusion of a written contract. The document should contain the following information:
In the last paragraph you can, for example, indicate that the owner of the share will live for a certain period of time in the apartment or will not be discharged from it. The price of the property is not necessary.
How to issue 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 specialist of the authorized agency. The Registrar shall be provided with the following documents:
If on behalf of any party actsa representative is additionally given a power of attorney confirming his authority. If the subject to whom the share is given is a minor or incapacitated, the consent of the guardianship authority and guardianship 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.
This is the second option for registering a share in an apartment. This method is more expensive, but in some cases more justified than the treatment in regalata. The following documents are provided to a notary:
In some cases, notaries also requestcertificate of registered persons on the premises. The gift agreement will be made in several copies. In this case, the document will indicate the price of the property. 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.
For registration, the notary will take the originalsdocuments (with the exception of passports) and a 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.</ p>