Schemes for the sale of a share in an apartment

Everyone who has had to deal with the sale of real estate knows that there are many subtleties in this matter, the observance of which is very important when making a deal. The main normative act that regulates relations in the field of real estate sales is the Civil Code of the Russian Federation. Let's start with the fact that real estate offered for sale must be privatized. Without delving into privatization as a process, we will discuss the main points. All the nuances and subtleties of housing privatization are described in the Law of the Russian Federation “On Privatization of the Housing Stock in the Russian Federation”. The law interprets privatization as a free transfer of state and municipal property into the private ownership of citizens. Only after privatization does a person become the full owner of the privatized property. Privatization should be considered as a type of acquisition of the right to an apartment. Privatization gives the right to alienate one's own property by any legal means. When answering the question of how to sell a share in a privatized apartment, it is necessary to understand the terminology used.

It is legally established that property that is in the possession of two or more persons belongs to these persons on the basis of joint ownership.

Ownership in this case can be shared (the share of each is allocated) or joint (parts are not allocated). These two types of ownership should be clearly separated, since the legal consequences of transactions with joint ownership and shared ownership are completely different. Each of the co-owners of the apartment has the right, at will, to donate, sell, bequeath, pledge the part (share) belonging to him or dispose of it in another legal way. The object of research in this article is a privatized apartment, and specifically, a share in an apartment.
Participants can dispose of an apartment that is in shared ownership only with the consent of all other participants; in case of disagreement, the procedure for alienation is established in court. An exception may be the sale of an apartment at a public auction.
So, if the question arose of selling a share of an apartment, you need to know the mechanism for its correct, legal solution, which will be described in the article.

General provisions

When an apartment privatized in shares is sold completely in one hand, the owners of the shares have reached agreement on this issue and everyone is satisfied with the amount of the transaction, then there are no problems: you just need to collect the necessary documents and make the sale in working order. The money will be divided as agreed.
If only one co-owner of a privatized apartment decided to sell his share, then here the algorithm of actions is already different. First, the seller determines the price of his share in the privatized apartment, then he offers to buy out his share to the other co-owners, since they, according to Art. 250 of the Civil Code of the Russian Federation, have the right of priority purchase of the share being sold before a third party. This suggests that the seller has the right to look for a buyer on the side only if the rest of the "participants" refused to buy. The law obliges the seller to notify the co-owners of the proposed sale in writing with the announcement of the desired price and other terms of sale. And only if the participants in shared ownership write a refusal or redeem the sold share within a month from the date of their written notification, the seller has the right to sell his share to someone who wants to buy it.
The pitfalls of this stage are such that the co-owners of a privatized apartment regard their priority right of redemption as a “permission to sell”. Based on this, they are trying in every possible way to evade a letter of notification about the proposed sale of part of the apartment, and since the permission to sell in this case is their agreement with a written notification, the state registration of the transaction may not take place without this.
You should be aware that if the sale was registered without the fact of warning the co-owner in writing, then within three months the owner, who evades signing the document of consent to the sale, has the right to challenge the transaction, if it was made, in court in his favor. The consequences are such that the buyer of the share during this time will find a simpler and faster option for himself in order to prevent possible conflict situations in the future.
There is no approved legislative mechanism to force the signing of a consent to the sale, but there is still an acceptable legal solution for the seller. You should go to a notary who will draw up a registered letter on behalf of the seller, send it to other co-owners of the privatized apartment and wait for their reaction. In this case, they are obliged to respond, and then according to the usual scheme.

The first way is the donation scheme

One of the easiest ways to sell a share of a privatized apartment is the "workaround". The seller has the right to donate his share to someone without the consent of the other owners. Scheme of actions for the seller:

1. A donation agreement is signed. The contract must contain information about all persons living in the apartment and having the right to live there, the subject of the contract is indicated, that is, specifically - how many square meters are donated. If the buyer is not a close relative, then the donee will need to pay tax on the income of an individual (13% of the value of the gift).
2. The transfer of money is carried out through a bank cell.

The deed is done, everything is done legally. Contestation of such cases is possible, but due to the absence of the fact of sale as such, a positive decision will be for the seller.
A variation of this method is possible. The seller does not give the buyer the entire part of the apartment, but only part of the share. This is followed by the sale of the whole share to the person to whom the part was donated, and since he has a legal right of priority purchase, he buys it.

The second way is a collateral scheme

1. A potential buyer of a share of an apartment borrows a certain amount of money from the seller, a loan agreement is concluded, it indicates the amount borrowed and the subject of collateral in case of untimely repayment of money. Naturally, the subject of collateral will be a share in a privatized apartment.
2. The money is not returned on time - the pledged property passes into the possession of the pledgee.

The third way is the net sale of a share in a privatized apartment

1. We evaluate the value of our share (the assessment is made subjectively - by the owner). You need to look at things realistically and understand that even the best share sold separately will be lower than the cost of a share in an apartment sold as a whole.
2. We notify other owners in writing of our intention to sell our share, indicating the terms of sale and the asking price. Within a month (the term established by law), they are obliged to make a decision: either to buy a share, using the right of first refusal, or to give up this right.
3. We register the refusals of the co-owners of the apartment by a notary, thereby insuring ourselves in the future, if one of them decides to challenge the transaction.
4. A purchase is being made. We draw up the contract ourselves: we download a standard form on the Internet and fill it out according to our documents or contact a lawyer who will draw it up for you for a fee. The contract must specify the cost of the share, a description of the share itself and the procedure for paying for the acquired property.
5. The transfer of ownership is subject to mandatory state registration.

List of documents required for the sale of a share

Documents required when privatizing a share in ownership:

1. An agreement on the transfer of a certain share into possession and a certificate of ownership of the share with the obligatory indication of the size of the share and the size of the entire apartment.
2. Share agreement.
3. Certificate from the BTI (it indicates the book value of privatized housing and the share of housing).
4. A document from the housing department (it records the fact that there are no debts for utility bills).
5. Extract from the house book.
6. Copy of financial account.
7. The consent of the guardianship and guardianship authorities - when minors live or are registered in the apartment.
8. Identification documents of the buyer and seller.

Shared ownership is not uncommon these days. It arises on various grounds and often between unfamiliar people. What should the owner of a part of the apartment do if there is no desire to live with the owners of other shares? Can I somehow sell my share and convert it into money to buy my own home? These topical issues concern many citizens, so I will answer right away: you can sell a share in real estate. But the deal has a number of nuances, which I will discuss in detail today.

○ What is shared ownership?

Shared ownership is a type of common ownership. The main feature of such property is the determination of the shares of each owner.

The main features of shared ownership:

• multiple owners;
• shares in kind are not allocated, the share exists only “on paper”, but if desired, one of the owners has the right to ask the co-owners to allocate to him a part of the property commensurate with his share;
• all the rights of the owners are exercised by the owners of the property on the basis of mutual agreement;
• co-owners have a pre-emptive right to buy out a share;
• the costs of maintaining the property and the income received from the property are distributed among the participants in the property depending on their shares.

○ The legal status of such housing.

The main law governing the rights of owners who own shares in an apartment is the Civil Code, Chapter 16. The rules for cohabitation are established by the Housing Code.

When alienating such property, it is necessary to be guided by:

• the Civil Code;
• the tax code;
• Federal Law No. 135 “On appraisal activities”;
• Federal Law No. 218 “On state registration of real estate”;
• “Fundamentals of the legislation of the Russian Federation on notaries”;
• Letter FNP No. 1033/03-16-3, which provides guidelines for notaries.

○ How to sell a share in an apartment?

I will tell you in more detail what is indicated in the above legal acts, and what are the features of the sale of a share in real estate.

✔ Can it be done?

The sale of its share by the owner is not prohibited by law. But do not rush to look for a buyer. When alienating such real estate, the rule on the preferential redemption of a share by co-owners applies. It is established in paragraph 1 of Art. 250 of the Civil Code of the Russian Federation:

“When selling a share in the right of common ownership to an outsider, the remaining participants in shared ownership 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.”

✔ Appeal to a notary.

Unlike a transaction for the sale of an entire apartment, the alienation of a share is subject to mandatory notarization:

“Transactions for the alienation of shares in the right of common ownership of real estate, including the alienation of all participants in shared ownership of their shares in one transaction, are subject to notarization” (part 1 of article 42 of Law No. 218-FZ).

○ How to sell an apartment in shared ownership?

The peculiarities of the sale of a share are related to the legal regime of such property. In accordance with the Civil Code, the disposal of property in which shares are allocated is carried out by agreement between the co-owners (clause 1, article 246 of the Civil Code of the Russian Federation).

✔ Agreement of all owners for sale.

In practice, such an agreement is practically not drawn up, since it is almost impossible to collect all the co-owners, so the sellers are allowed to act according to a slightly different “scenario”.

Action algorithm:

1 . First, the seller must notify all co-owners about the sale of the share. The notice is drawn up in writing, it indicates the price, the subject of the transaction and other conditions of sale (clause 2, article 250 of the Civil Code of the Russian Federation).

The following are recognized as significant terms of sale in the FNP Letter No. 1033/03-16-3:

“Taking into account the established practice of real estate turnover, the notice should also indicate other conditions that are significant for the parties, for example: the procedure for settlements; retention of the statutory right of collateral with installment payment or not; the presence of persons retaining the right to use residential premises; terms of transfer of property, etc.”

2 . The letter must be sent through a notary public or by mail. Thus, the confirmation of the notice will be the corresponding notary certificate or a copy of the telegram issued by mail (clause 2.5 of the FNP Letter No. 1033 / 03-16-3).

3 . If there is no response within a month or the co-owner sends a written refusal to deal, you can safely sell your share to another person.

✔ Determination of market value.

There are many independent appraisers operating on the market, acting on the basis of a qualification certificate. After carrying out the necessary calculations, the specialist will issue a report that you can safely operate during the transaction.

✔ Buyer search.

The search for a buyer must begin after receiving refusals from other participants in shared ownership or a month after they have been notified.

Even if you found a buyer earlier, you have the right to conclude a deal with him only after the co-owners refuse to buy.

The price offered to the buyer must correspond to that specified in the notice.

✔ Preparation of documents and sale of the apartment.

If you contacted a realtor, he will help you complete the transaction correctly. If you are selling a share in real estate on your own, check the agreement for the presence of:

• description of the subject of the contract - a share in the apartment and the apartment itself (how many rooms it has, the number of square meters of residential and total area, floor, address);
• prices;
• information about restrictions in the form of third party rights to real estate.

• statement;
• the passport;
• title document;
• a receipt for payment of the state duty (2,000 rubles - subparagraph 22, paragraph 1, article 333.33 of the Tax Code of the Russian Federation);
• contract of sale;
• documents confirming the notification of the co-owners about the sale of the share or their refusal to purchase it.

After registration of ownership in Rosreestr, the new owner becomes the full owner of the share of the apartment.

It is unacceptable to dispose of an apartment that is in shared ownership at one's own discretion. And the sale of a share may be accompanied by some difficulties associated with disagreements between its owners. A frequent reason for litigation is the refusal to divide property! Because in a privatized apartment there is no clear division into rooms between all the owners living in it.

Due to such delays and difficulties in reaching a compromise between the owners, problems arise with the sale of their part in common shared ownership. Next, find out: "Is it possible to sell a share without the consent of others?" and “How to do it legally in 2019?”.

What is a share in an apartment?

Property may be owned by two or more persons. This property is considered to be common property. When specific shares are allocated, it is recognized as equity, without allocation - joint.

Privatized apartments are the joint property of all privatization participants, but if desired, a specific share can be allocated and registered for each separately. The only problem is that it is impossible to determine this share in kind, since there is only one entrance to the apartment and it will not work to distinguish the boundaries of shared ownership. This means that the share is only a legal concept.

You can get a share in residential real estate in other ways:

• accept as a gift or inherit;
• set aside in divorce.

Each owner has the right to use the apartment without violating the rights of other co-owners.

The legislative framework

The concept of shared and joint ownership is given in Article 244 of the Civil Code of the Russian Federation.

Clause 1 of Article 250 of the Civil Code states that all owners of shares in an apartment have a pre-emptive right on equal terms and at the same price to redeem a share from one of the co-owners.

This means that if you intend to sell your share, a citizen is obliged to notify the rest of the owners in writing.

State the price and other conditions in the letter. A month is allotted for reflection. If during this time no one expresses an intention to buy out the share, then the seller has the right to make a deal with it and sell it to anyone.

Important! Refusal to purchase, co-owners must issue in writing.

Paragraph 2 of Article 250 of the Civil Code states that if there is a written refusal from all owners before the expiration of a month, the share in the apartment can be sold earlier.

Violation of this stage may lead to litigation with other owners of shares, which will be an unpleasant moment for both the seller and the buyer. The notary must explain such consequences when drawing up a contract of sale.

According to paragraph 3 of Art. 250 of the Civil Code, other co-owners, having learned about the violated rights, have the opportunity to apply to the court within three months and demand the transfer of rights to the sold share to them. The person who bought part of the premises will find himself in an unpleasant situation, since the court will decide that in the contract of sale the person who filed the claim should become the buyer. In this case, the transaction will not be cancelled.

Following paragraph 1 of Article 42 of the Federal Law of July 13, 2015 No. 218-FZ, the procedure for the alienation of a share in common ownership must be notarized.

How can I sell a share in an apartment if the other owner is against it?

There are times when one of the owners wants to sell his share, but the second is categorically against it. The first acts legally, trying to deliver a notice of his intention, but the second refuses to even accept it. Thus, not giving the opportunity to comply with the entire order of the legislation.

Option 1. Resort to litigation. The party wishing to sell the share must correctly and motivatedly state the reason for the sale. Perhaps this is an unwillingness to live together with the second owner or financial necessity.

The court will comprehensively study all the materials of the case and make a decision, comparing the accompanying circumstances. Including the size of the shares in the property of each are taken into account. As a result, the court may oblige the dissenting co-owner to sell his share to another, if he has the financial means to do so. But, if he lives in this apartment permanently, then even the court cannot force him to sell his share.

Option 2. However, if the second owner is against the sale and is categorical in this matter, you can use another legal way - to sell the share by drawing up a donation agreement, to receive money on receipt. In this case, no consent of the other co-owners is required. At the same time, you can give absolutely any citizen.

But there are risks:

• you can be left without money, because the share is transferred to gratuitous use;
• the transaction may be recognized as imaginary and canceled by the court, in the event that the fact of the transfer of money is proved.

Option 3. Consent is not required in the event of a loan agreement. The meaning is as follows: the seller borrows money, leaving a share in the apartment as collateral. Then they conclude a "Compensation Agreement" and the pledged share in the apartment is transferred to the account of its repayment.

Step-by-step instructions for selling a share in an apartment

To avoid the unpleasant consequences of a transaction with a share in common property, it is necessary to comply with all legal aspects and follow a certain algorithm of actions.

Step 1. Notify all co-owners in writing of the intention to sell their part of the property (shares) in order to find out their intentions regarding the desire to acquire it.

Step 2 Drawing up a contract of sale, as well as an act of acceptance and transfer of a share.

After a buyer is found, a transaction agreement is drawn up, which must contain information:

• about participants with passport data;
• about the price;
• about the subject matter of the transaction. Here the size of the share and the data of the object itself (address, number of rooms, total and living area) are indicated.

The contract of sale is subject to mandatory certification by a notary. The parties sign a deed of transfer, which is an annex to the contract.

Step 3 Registration of the transfer of ownership.

To register, you must contact Rosreestr or a multifunctional center with a package of documents:

• an application for state registration of ownership of a share in a residential premises from each of the parties to the transaction - filled out on the spot;
• originals of contracts and acts of transfer in three copies, certified by a notary;
• confirmation that all other owners of the shared property have been notified and, if any, their written refusals to buy out the share;
• passports of the parties to the transaction;
• if the share was owned by a minor, then consent from the guardianship and guardianship authority to dispose of it;
• pay the state duty and attach the receipt to the package of documents.

It is not necessary to present a receipt, but if the information about the payment is not in the information system within 5 days from the date of submission of documents to the registering authority, it will return them without consideration.

Pay attention to the fact that the Tax Code establishes the terms for at least which an apartment or a share in it must be owned in order not to pay tax on income from the sale. It is:

• at least 3 years if the share was acquired before January 1, 2016,
• at least 5 years in case of acquisition of ownership after January 1, 2016.

In conclusion, I would like to note that transactions with shares in residential real estate differ from transactions with joint ownership in that the co-owner who wants to sell his share is obliged to notify the others of his intention. If neglected, this can lead to litigation and the transfer of ownership of the share to the plaintiff. Another important point is the mandatory notarization of the transaction.

Common shared ownership of an apartment is a common form of ownership of privatized real estate. Several people can be co-owners at once, for example, mother, father and a minor. The apartment is privatized into several parts, each of which passes into the hands of the tenants (co-owners). They have the right to dispose of only their share, without claiming the rights of other tenants.

Sometimes it happens that a person intends to sell a share in privatized real estate. For example, after a divorce or receiving an inheritance in the form of an unnecessary part of the housing. The option with the usual sale of the entire apartment will not work. The co-owner has the right to dispose of only his part. In order not to break the law, you must follow the rules of the sale. For a better understanding, let's consider the issue in stages with illustrative life examples.

Is it possible to sell a room, part, share in a privatized apartment?

The owners of the apartment are considered to be members of the shared ownership. The concept of "share" does not have a specific designation - it is not a room, bathroom or kitchen. This is what is called a part in common ownership. Residents can set the rules for using the apartment at their discretion.

It is possible to sell a room or part of a privatized property only after notifying the other owners. Moreover, according to paragraph 2 of Art. 250 of the Civil Code of the Russian Federation, the rest of the tenants have the pre-emptive right to purchase a share. If such an offer is not followed, and part of the apartment goes to a third party, the transaction can be challenged.

Restrictions when selling a share in an apartment:

• disposal of housing is possible only with the consent of all owners;
• co-owners have the right to refuse the purchase;
• preventing the sale forces the seller to go to court.

So, when selling a part in a privatized apartment, the seller notifies the other tenants about this. If they agree to the purchase, then part of the housing can be sold to them. In case of refusal, the seller has the right to sell his share to third parties.

Legal schemes, methods

Civil law determines the scheme for the transfer of real estate or part of it. Any procedure requires the conclusion of a written sales contract (Article 550 of the Civil Code of the Russian Federation). Consider three main ways to sell a share in a privatized apartment.

Sale by gift

A donation for a part of an apartment is a gratuitous transaction for the transfer of non-property rights to a gifted person. But in the case of sale by donation, we are talking about an unusual mechanism. The bottom line is this: the seller gives part of the share to the gifted person, and sells the rest to him at market value. The gifted person (buyer) receives the pre-emptive right to purchase the part.

Example:

A distant relative decided to sell Romanova a share in a privatized apartment. The woman wanted to raise money for the mortgage of a new home. But due to financial difficulties, Romanova could not redeem the entire share at market value. Family ties took over: a distant relative wrote a donation in the name of Romanova, transferring that ½ of her share. The rest of the Romanova bought at the real cost. It was not necessary to notify other tenants about the sale, since the gifted person in the person of Romanova received a priority right to redeem.

Sale through pledge

Legally controversial but perfectly legal scheme with selling part of the apartment to the bank. The seller draws up a loan and pledges his share as collateral to secure the payment of the amount. Further, the borrower uses the loan for his own needs and does not repay it on time. The pledge goes to the bank, and the "seller" remains with the money.

However, the sale through a pledge has a number of nuances (clause 1, article 54.1 of the Federal Law "On Mortgage"):

1. The collateral must exceed the amount taken by at least 5%.
2. The borrower does not repay the loan for more than 3 months.

Otherwise, the pledge will not go to the bank and the debtor will have to repay the loan in other ways. It is possible that the case will go to court, and this is already more serious.

Example:

One-room privatized apartment was divided into shares between two owners. One of them wanted to sell his part, but buyers were scared away by the footage of the apartment. No one wanted to buy out a share, and then share the living space with a stranger. The seller decided to act through the bank: he took out a loan for 450 thousand rubles (the market value of his part in housing was estimated at about 600 thousand rubles). Having spent money to buy a car, the man deliberately did not extinguish the debt. After 3 months of delay, the mortgage share of the apartment became the property of the bank. In this way, the seller managed to sell his part and get money for it.

Simple sale

The standard procedure is the sale of a share in a privatized apartment. The buyer can be other homeowners or a third party. The deal is in the form sales contracts(Article 549 of the Civil Code of the Russian Federation).

The seller undertakes to transfer his part to the buyer. The buyer pays the seller an amount equal to the market value of the partial rights to the property.

Question:

Hello! I want to sell a share in a two-room privatized apartment. I know I need to notify my neighbor first. But he does not appear at the place of residence for 3 months. I have no idea where to look for it. He is unlikely to buy my part. How can I sell a share in an apartment to another buyer?

Lawyer's response:

Good afternoon.

According to the provisions of Art. 250 of the Civil Code of the Russian Federation, your flatmate has a pre-emptive right to purchase a share. If you do not notify him of the sale, he can challenge the transaction in court. It is advisable to wait for him to appear in the apartment. But you can make a written notice and send it to the neighbor's address (by registered mail). Selling housing to third parties without notifying the co-owner is considered a violation of the current regulations.

How to sell a privatized apartment with shares with consent?

Selling a part of an apartment is a transfer of rights to a new owner. Most likely the latter will live in a residential area. Therefore, such transactions involve notifying other tenants of their intentions. They can redeem the share themselves at its market value. Otherwise, the apartment is sold to third parties.

Order, stages

It happens that the co-owners of the apartment wish to acquire the share to be sold. This is a favorable option, since you do not need to look for a buyer on the side. And living with familiar tenants is much more comfortable.

Action algorithm:

1. Take an extract from the USRN (see "").
2. Determine the market value of the part.
3. Issue a written offer to buy out the rest of the tenants.
4. Wait for their written consent.
5. Draw up a contract of sale, visit a notary.
6. Sign the acceptance certificate.
7. Register changes in Rosreestr.

It is important to accurately determine the size of the share. Usually, all work is carried out by private appraisal firms. But you can apply to Rosreestr or BTI at the place of registration of real estate.

procedure, process

The sale of a share in an apartment is different from the usual sale and purchase procedure. The participants in the transaction are not only the seller and the buyer, but also the co-owners of the premises.

The procedure for selling a share in real estate with consent:

Step #1: Notifying Other Residents

Intending to sell part of the apartment, the owner is obliged to inform the co-owners of his decision. Oral notification is easy to challenge, so only the written version applies. The notification includes the price of the share and the terms of the transaction. The owners are preparing a response.

Step #2. Obtaining Consent

Suppose one of the tenants agrees to buy out the owner's share. The approval is expressed in writing. After that, the parties proceed to draw up a contract of sale. If there are several applicants, then the seller prefers the best price.

Step #3. Conclusion of a sales contract

Done in the presence of a notary. The contract contains the rights and obligations of the parties, the price of the object, the conditions of maintenance, information about other owners, etc.

Step number 4. Signing of the acceptance certificate

It is compiled at the stage of settling a new owner. As we have already found out, a share is a right in common property. The property equivalent of a part can be a separate room with footage. Cadastral information is recorded in the registration certificate.

Step number 5. Registration in Rosreestr

The final stage will be the registration of the right in the Unified State Register. The buyer will receive a share in his property, and the seller will lose ownership.

Example:

After receiving the inheritance Gorodov E.V. got a share in a 2-room apartment, where three people already lived. The heir had a separate living space and decided to sell the received part of the housing. Having got acquainted with other owners, Gorodov offered them to buy out his share at the market price. One co-owner refused, and the second was ready to make a ransom. Gorodov and the buyer visited a notary, drew up a contract of sale and signed an act of acceptance and transfer of the object. Thus, the co-owner already owned ⅔ of the part in the privatized housing.

How to sell a privatized share in an apartment without consent?

Violation of the right of pre-emption may be challenged in court. The law prohibits the sale of a privatized part of an apartment without notifying the co-owners of the living space. - read about it in our material.

Main risks:

1. Disagreement with the sale of other owners.
2. Transfer by co-owners of the rights and obligations of the buyer to their own name.

The second risk is associated with a situation where the seller does not want to sell his share to another owner, but sells part of the apartment directly to a third party. This is not the way to do it. Moreover, there is a completely legal option for selling a part of a property without the consent of the tenants.

Order, stages

The main difficulty of such a procedure is the lack of consent of the co-owners of housing.

1. Orally invite other co-owners to buy out part of the apartment.
2. Send written notices/registered letters.
3. Wait for the refusal, certify it with a notary.
4. Go to court.
5. Get a writ of execution.
6. Select a part and determine its value.
7. Find a buyer and conclude a contract of sale.
8. Draw up an act of acceptance and transfer of a share.
9. Complete the registration of rights in Rosreestr.

The most important thing is to notify other owners in a timely manner and get a response from them.

procedure, process

Many people ask how long to wait for a response from another tenant of the apartment? The law provides for one month. If the co-owner does not respond or is against the sale of the share, the owner acts at his own discretion. For example, you may go to court.

The procedure of proof in court will consist of several stages. First, you need to confirm that all other tenants received notifications. Refusals are certified by a notary. The seller must be in possession of documents for his share. This is enough for the court to allow the allocation of a part in the apartment. Further redemption of a share in housing occurs according to the standard procedure.

Example:

Ulanova V.V. owned a ⅓ share in a privatized apartment. Faced with financial difficulties, the woman decided to sell her share to two other owners. But the latter did not want to make a purchase. Ulanova did not have the keys to the apartment, as she lived with her husband, but was registered in that housing. Two other co-owners did not let Ulanov go over the threshold. The woman was forced to go to court. Lawyers helped draw up a statement of claim to remove obstacles to the use of residential premises. The plaintiff relied on Art. 304 of the Civil Code of the Russian Federation. The demands were satisfied in full - the court ordered the other owners to stop violating Ulanova's rights. The woman was able to enter the apartment, notified the co-owners of the sale of her part of the housing and closed the sale and purchase transaction.

Features of the sale if there are minor children

Children's property can only be sold with consent of the guardianship authorities(OOP). To get permission, you need to provide the child with a similar share in another apartment. For example, if ¼ of the privatized housing is for sale, then the new one should be at least ¼ of the part, and preferably more.

Permission to sell the child's share in the apartment is issued after 14 days. A minor cannot do the paperwork on his own - it is done for him by his parents (guardians) or a representative of the PLO.

Example:

The two-room apartment belonged to the mother and 4-year-old daughter on the right of shared ownership: ½ each. The woman expressed a desire to urgently sell the apartment, as a better option was found. The mother wanted to sell all the property, and in return for ½ of her daughter's share, provide her with a slightly larger area in the new housing. The transaction was planned to be formalized as a donation agreement. Turning to the PLO and to the notary, the woman did not meet any obstacles. After the sale of a 2-room apartment, she bought a 3-room apartment, and registered her daughter in it. No violations were identified. In exchange for the sold ½ part in the daughter's apartment, the mother provided her with improved conditions in a new place.

Difficulties, nuances

Lawyers note that the sale of shares in privatized housing is a rather complex and risky transaction.

Peculiarities:

• The co-owners of the apartment may not give a written refusal to the seller. The sale will be delayed, and the owner will lose potential buyers.
• The redemption of a share in real estate is subject to a 13% tax. A donation to the name of close relatives is free.
• The minimum price for a share to be sold is always the same for everyone: you cannot offer co-owners the same price, and after they refuse to sell their part to third parties much cheaper.
• Transactions with the sale of shares in privatized apartments attract scammers. They can buy a part at a lower price, and then in every possible way survive the rest of the co-owners (make repairs, make noise at night, drink alcohol, store things). As a result, the latter will be forced to leave their homes and sell their share to scammers.

Situations can be very different - in order to avoid trouble, it is advisable to enlist the support of a lawyer. Contact our experts. A free consultation will allow you to resolve contentious issues with housing.

Privatization of an apartment involves the transfer of ownership of real estate from the state to individuals or organizations. Shared ownership can be assigned both to citizens who are related to each other, and to strangers.

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Each owner of the living space has the right to dispose of his share at his own discretion, but with the observance of the rights of all persons living in the apartment.

A share in a privatized apartment should be sold under a written agreement, subject to the rules of priority purchase. Such a rule allows you to assign real estate to interested parties living under the same roof.

The pre-emptive right is established in and means that a citizen who decides to receive money for his share must offer to purchase it to other owners.

Such a proposal is expressed in writing, with the obligatory certification by the seal of a notary.

General provisions

A privatized apartment, divided into shares between the owners, may be habitable, but the sale is accompanied by legal and factual difficulties.

The legal procedure requires careful information about the size and characteristics of the share, as it is not always proportional to the number of owners. For example:

• one tenant owns ½ of the area;
• the rest own ¼ of the apartment.

There may be situations when the owner owns ½ of the privatized apartment, and the second housing is jointly owned by two persons (for example, spouses).

Such situations require a rigorous analysis, since a small mistake in concluding a sales contract can become the basis for the invalidity of such a transaction.

Concepts of shares

The share implies a separate part in the common property. Shared ownership of real estate is confirmed by a specific title document - a “pink” certificate.

Shared ownership may include one or more rooms in an apartment. Owners have an equal right to use certain premises - kitchen, bathroom, toilet, etc.

A share can be an object:

• donations;
• pledge;
• reimbursable civil transactions - purchase, sale.

How to sell a share in a privatized apartment

Such a transaction must be carried out in writing, with the desired registration with a notary. A written contract remains a prerequisite for the transaction ().

State registration of ownership of the purchased share is necessary and can be enforced - if one of the parties to the transaction for some reason does not want to apply to the territorial department of Rosreestr.

In favor of the mother (parents)

The law does not prohibit giving up a share in a privatized apartment in favor of the mother. In practice, transactions of this nature are not frequent.

The Civil Code of the Russian Federation does not provide the advantage of buying (selling) a share to relatives. The pre-emptive right to acquire a share is reserved for the owners, regardless of the degree of kinship.

relative

The sale of a share to a relative is carried out on a general basis. If a relative is the owner of an apartment, then he has the right of priority purchase of the realizable part of the living space on an equal basis with other persons.

Family relations affect the right of donation, since when donating real estate to relatives, 13% tax is not levied.

Without agreement

The sale of a share without the consent of other owners is fraught with the risks of challenging such an agreement. Article 250 of the Civil Code of the Russian Federation establishes the rule of preferential purchase of a share in a common living space (and other property).

If this rule is not observed, it is likely that property owners:

• will disagree with the sale;
• apply to the court with a demand to transfer to themselves all the rights and obligations of the buyer.

Sale of a share of a minor

The interests of a minor may be represented by:

• parents;
• legal representatives (guardians, trustees).

They do not have the right to independently dispose of the child's property without the permission of the guardianship and guardianship authority.

The participation of parents does not make them an independent party to the share purchase agreement, but indicates that the parent acts in the transaction as an interested person protecting the rights of the child.

Options

The alienation of a share in real estate to a new owner requires compliance with a number of mandatory conditions:

1. Drawing up and signing the contract.
2. Notifying other owners of the sale of shares.
3. Obtaining from them a written refusal (or consent) in the preferential purchase.
4. Payment of income tax.

Lawyers have developed several schemes for the transfer of shares on a reimbursable basis, including:

• "fictitious" donation agreement;
• pledge agreement;
• a sales contract subject to the provisions of , .

Gifts and pledges are ways to simplify the procedure for transferring a share in real estate for compensation. Lawyers talk about the “feigned” nature of such transactions (in order to cover up another transaction, which initially does not give rise to rights and obligations for the parties).

In practice, experienced lawyers have learned how to conduct transactions for the alienation of a share in common real estate without violating civil law.

Donation scheme

Donation () is a free transaction. Transfer of money under such an agreement is not provided.

When drawing up a donation agreement (with the actual transfer of money for a share of real estate), lawyers recommend adhering to the following procedure:

• determination of the final price of the share to be sold;
• negotiation of the terms of the contract;
• registration of the transaction in Rosreestr;
• transfer of money to the seller through a bank cell (for the confidentiality of the transaction).

A donation agreement is subject to taxation (with the exception of gifts between relatives). The tax is levied based on the market value of the real estate share.

Collateral scheme

A share in a privatized apartment may become an object of collateral under a loan agreement. In this case, the following actions are recommended:

• conclusion of a loan agreement (with the transfer of money to the seller);
• signing a pledge agreement;
• transfer of share to the mortgagee.

The complexity of such procedures lies in waiting for the expiration of the contract and the return of the loan. There may be situations when the share will have to be withdrawn by a court decision (with the subsequent refusal of the seller to transfer the pledge to the lender).

Net share sale

The sale of a share without the need to issue a deed of gift can be carried out in the standard way - by signing a contract of sale.

Then there should be:

• price terms agreed;
• the characteristics (size) of the share in the common privatized apartment are given.

Such an agreement must undergo mandatory registration with Rosreestr.

An application for registration is submitted in person or through federal (regional) portals of public services.

How to notify owners

The law does not specify how other owners must be notified of the sale of a share by one of them.

Owners' refusals to preferentially purchase a share must also be received in writing.

Procedure

To sell a share, you must:

1. Set its value.
2. Offer to sell it to other owners of the privatized apartment.
3. Obtain written refusals (or) consent from them.
4. Negotiate the terms of the contract with the signature of counterparties.
5. Draw up an act of acceptance and transfer of a share.
6. Go through the process of state registration of property rights.

The list of such events can be supplemented by procedures for the examination of housing, litigation to allocate and clarify the size of the share.

List of documents

An approximate list of documents should contain:

• legal, technical documents;
• contract;
• notifications of equity holders about the sale, their written refusals.

To register a property right you will need:

• certificate-extract about persons who retain the right to permanent use of living space;
• certificate from the BTI on the cost of housing;
• statements to Rosreestr on behalf of interested parties;
• state duty.

Possible difficulties

The main difficulty of such a transaction is finding a client. Owners living in the apartment should be interested in buying a share.

Some owners may evade signing a refusal to purchase a share in preference or dispute an already completed transaction.

In such a situation, it is advisable to seek the help of a qualified lawyer.

How to cancel a share

You can withdraw your share at any time and without prior approval from other apartment owners.

It is desirable to perform such a unilateral legal action simultaneously with the signing of a donation agreement in favor of a specific person.

How to give

The share can be based on a donation agreement. It is concluded through the mediation of a notary and undergoes state registration in the territorial department of Rosreestr.

The main condition of the transaction is the will of both parties, while respecting the rights of other persons living in the apartment.

Transfer to another shareholder

With the consent of one of the owners to buy a share, a sale and purchase agreement is concluded with further state registration.

A donation in favor of another shareholder also entails the transfer of ownership and the possible consolidation of shares.

You can act on a notarized power of attorney - through legal agencies or interested parties.

Is it possible to sue

Subject to the rules for the sale of a share in a common privatized apartment, it makes no sense to dispute the transaction.

Conflict situations are possible if the procedure for the preferential acquisition of a share by interested parties was not observed, or if the rights of minors were not taken into account during its implementation.

Such disputes are subject to resolution in the courts of general jurisdiction.

Testament to share

The will must be drawn up with the requirements. A citizen may deprive the share of the heir or transfer it in favor of the state (municipality).

There may be situations when a specific heir is indicated in the will, but the rights of obligatory heirs (disabled children of the testator) are not taken into account.

The will must be registered with a notary.

Is it possible to return

With an equal and fair division of shares and the sale of one of them to a new owner, the return will be extremely costly.

It will be necessary to prove in court that the section initially infringed on the rights of minors or other persons.

Property can be returned upon disclosure of fraudulent schemes for the alienation of shares under the guise of donation or pledge agreements.

Frequently asked Questions

Citizens are interested in the procedure for determining the marital share in a common privatized apartment, donating a share to a relative, etc. The most relevant questions are listed below.

Forced sale