Is it possible to sell a share in an apartment. Sale of a share in an apartment: procedure, conditions, documents. Legal regime and legislative regulation of shared ownership

Selling real estate is a serious and responsible step that requires the right approach and knowledge of the basic rules and laws of its implementation.

general information

The Civil Code of the Russian Federation contains the basic tenets of the sale of real estate. This codified act consolidated the provision that only privatized real estate can be sold.

The privatization process is regulated by the Law of the Russian Federation "On privatization housing stock in the Russian Federation ”, which interprets the concept of the privatization process as the transfer of municipal and state property under the authority of a private person. It is privatization that gives the right to become the owner of the property and dispose of it at its own discretion.

The law establishes the fact of ownership of property divided on the basis of joint ownership rights to persons who have shares of this property.
Property owned by more than one person can be of two types:

• share;
• joint.

These are completely different concepts. Within the framework of this article, we will consider precisely shared ownership.

Owners with a share in common property, are endowed with the right to take actions to dispose of this share only with the general consent of the rest of the participants in the shareholding. If at least one of the participants in the shared property is against the actions taken, the possibility of alienating their part of the property will have to be challenged in the courtroom.

Selling mechanism

The process of selling an apartment will take place "without a hitch, without a hitch" if:

• the contract was concluded for the sale of the apartment as a whole and to one owner;
• the parties to the treaty on both sides reached a consensus;
• the amount of the sale is agreed, fixed and agreed with both parties.

In this case, no difficulties should arise with the sale of the apartment. The funds received from the transaction shall be divided among the equity holders in accordance with the agreement.

The rules for a separate part of the apartment are slightly different. The first step in the sale of an apartment by one shareholder is to contact the owners of the other shares. The essence of this appeal is to offer the purchase of the share being sold. According to the Civil Code of the Russian Federation, co-owners of one real estate have the right to be the first to acquire the share being sold.

If there are no persons willing to purchase the object among them, the seller has the right to sell it to a stranger, a third party. Notification of the other co-owners of this decision is mandatory.

It is allowed to proceed directly to the sale of a share of the property only if there are written refusals from the other owners.

In addition, it is imperative to notify equity holders in writing about the proposed sale in order to avoid challenging the transaction. They have every right to do so within 3 months after the completion of the procedure.

Registration of the right to the acquired property is impossible in the absence of refusal to purchase by the co-owners. It is impossible to force the owner of one of the units to sign such a refusal. What if the owner of the share refuses to accept the written notice of the sale?

There is a way out: contact a notary office. The notary has the right to send a letter of appropriate content with notification. There will be nowhere to go. Receiving a letter means being aware of the sale.

Option one - donation

To sell part of an apartment without unnecessary problems and agreements with someone can be bypassed. For example, donate your share. The owner has every right to do this, and the consent of other co-owners is not required. In this case, proceed as follows:

• the seller enters into the most ordinary donation agreement indicating the persons living in the apartment;
• the transfer of money is carried out using a cell in the bank.

Or, alternatively, you can donate a small part of the share of the property. Thus, the donee will become the same rightful owner and have the first right to purchase it. As a result, he is on legal grounds buys the desired share of the property.

Option two - bail

1. the future buyer lends a certain amount of money to the owner of the share of the apartment, takes part of the apartment from him as collateral;
2. the seller does not return the money in a timely manner, and the deposit goes into the appropriate hands.

Option three - sale

The step-by-step instructions are as follows:

• initially it is worth assessing the cost of the share that is supposed to be sold;
• notify the other owners of the plans for the sale and give them the opportunity to buy the share themselves;
• the term is legally established - a month during which they can either agree to purchase or refuse;
• the refusal of each owner must be notarized in order to minimize the risk of dispute;
• the process of directly selling an apartment;
• registration of ownership by the new owner in the relevant state registers.

List of papers for registration of sale

List of required documents:

• paper confirming the division of property;
• and housing department on the planning and confirmation full repayment rent arrears;
• passports of a citizen of the Russian Federation of both the person purchasing and selling the share;
• direct sales contract of the corresponding form.

Important information

An obligatory document drawn up upon the transfer of part of the apartment into the possession of the new owner is the acceptance certificate. Without it, the contract is considered invalid, since it does not correspond to the form established by law.

It is fair to say that the owner of a smaller share is more likely to sell it to the owner of a larger share. There is even a certain arbitrage practice on these cases.

Thus, the issue of selling a share of an apartment is serious and substantial. Exploring the nuances this issue- the right way to successfully sell property.

Features of shared ownership

In accordance with the current legislation, only a privatized one can be in shared ownership.

Unlike a communal one, where you can clearly define the boundaries of the property of each owner, in an ordinary one it can be quite difficult. Therefore, most often the real use of the premises is carried out by agreement of the tenants. When selling a share in an apartment, the contract should clearly indicate which premises are transferred to the ownership of the buyer.

The cost of a share in an apartment is usually lower than the market value of the square meters sold.

How to sell a share in an apartment

In order to profitably sell a share in an apartment, you must first of all offer to buy it out to the rest of the owners of the apartment. Selling a share to the sole co-owner of an apartment is most beneficial, since in this case the buyer becomes the sole owner of a separate apartment.

Notification of other owners about the planned sale of the share is done in writing, and the received responses are notarized. If the co-owners of the apartment refuse to purchase the share being sold, or have not responded within a month from the date of sending the notification, the seller has the right to sell his share to any person.

It is easier to sell a share in an apartment to a third party if this share can be allocated in kind, that is, in the form of a separate room. Otherwise, the apartment owners must determine which premises will be sold. If an agreement could not be reached, then the allocation of the sold share in kind is carried out by a court decision.

Documents required for the sale of a share

To quickly sell a share in an apartment, you should prepare all the necessary documents in advance:

• documents of title to the share of the apartment;


• notarized refusals of other owners to buy out a share;


• floor plan and explication from BTI;


• certificates on the absence of debts for utility bills and taxes;


• an extract from a personal account or house book;


• contract of sale

The contract for the sale and purchase of a share in an apartment is mandatory state registration.

Anchor points

Transactions with shared property are carried out with the consent of all owners of this property. The legislation takes into account the rights of all co-owners, regardless of what their shares are.

It happens that co-owners have not indicated the procedure for using shared housing. In legal terms, it follows that they equally use the entire premises.

A share in jurisprudence is a virtual concept. It is expressed only as fractions: 1/2, 3/16, etc. It is impossible to draw a certain border and prohibit other homeowners from invading someone else's territory.

The sale of a share in an apartment is considered one of the the most time-consuming procedures with real estate, from such transactions the head of realtors is most of all.

We understand very well that not always all co-owners have friendly relations, and often they strive to prevent the sale of someone else's share. Purchase and sale operations are complicated by the fact that sometimes the shares are not allocated in kind. However, don't worry too much. As they say, there are no insoluble problems, and no matter how difficult the situation is, and no matter how intractable the neighbors are, it is possible to sell your share, and even in several ways.

Real estate owned by two or more people is considered common.

Such property happens:

• joint (shares not established). This is a common case when it comes to the housing of spouses who decided to divorce, if their housing was purchased while they were still considered a legal husband and wife. It is also about this if the housing was privatized in the 1990s - the determination of shares in housing was not required then;
• share (the shares of all co-owners have been established).

When an apartment, which is in joint ownership, is sold in full and the owners have agreed in advance on the amount that is due to everyone after the sale, then consider that everything is smooth and there are no problems. But if only one of the co-owners decided to sell his own share, then you have to tinker. First, you need to reissue some documents, namely - joint ownership convert on paper to equity. This is done in order to determine what share is due to each co-owner of the home.

This is done in court. Most often, with this re-registration, all shares are recognized as the same. But when the interests of minors, people with disabilities are affected physical capabilities, veterans, etc., the court may order otherwise.

Suppose the shares are finally marked. The seller then sets the price. The law obliges the seller to offer to buy out this share to the rest of the co-owners of the apartment. The Civil Code says that they have a priority right when purchasing this share in comparison with other buyers, for the price at which this share is sold, and on other equal terms. However, let us make a reservation that this does not apply to public trading.

Let's decipher. The seller can attract other buyers only when all other co-owners have refused to buy.

The law prescribes that the seller is obliged to notify all co-owners in writing about the desire to sell the share. It is stipulated that the notice must contain the price and all the conditions under which he sells his property.

To prove that such a notice was received, the seller needs to collect the following documents:

• answers of co-owners. They must be certified by a notary;
• written responses of co-owners, signed by them in front of the employees of the registering authority;
• a notarial certificate that such a notice has been transferred to the participants in the common shared ownership.

Within a month after the notification, the co-owners must either buy a share or refuse to purchase. The refusal of the co-owner, together with other documents, must be submitted to the registering authority.

If several co-owners expressed a desire to buy the share being sold, then the seller himself chooses to whom he wants to sell it. Well, if all co-owners refuse, then the seller can safely sell this share to anyone he wants.

Difficulties with co-owners

At this stage of the sale, sellers often face great difficulties. The owners sometimes understand the "pre-emptive right" as a kind of "permission to sell". They do their best to avoid receiving news of the sale, and without their refusal, the state registration services may not accept the documents and will not register the deal. In addition, within three months, the “unannounced” co-owner can, according to the law, challenge the transaction in court. There is a high degree of likelihood that he will win the process. Then even a patient buyer usually refuses to buy - he does not want to have problems with his home and conflicts with neighbors in the future.

If the co-owners do not live in the apartment

Huge difficulties are caused by situations when co-owners do not live in an apartment, and no one knows their address.

Lawyers explain that in order to fulfill the requirement of mandatory notification of all co-owners of the intention to sell the share, it is enough to send a letter of notice to the last place of registration of the absent co-owner. To be on the safe side, the seller should have as much evidence as possible that he tried to take all measures to notify, then it will be easier for him to defend his rights if a trial begins.

If the court recognizes that one of the co-owners is missing (and there is such a court decision), then the right of pre-emptive purchase does not pass to such an absent co-owner.

The Civil Code did not prescribe cases when co-owners of shares leave the sale. In such a situation, realtors and legal advisers advise the seller to go to a notary, who will send a letter notifying other owners of this apartment (as we have already described above). They also advise using one of the following options for selling a stake.

"I want the share to be redeemed"

If the shared property cannot be used together (for example, if it is a one-room apartment), then the owner who has a smaller share may demand the redemption of his share in court, if an agreement has not been reached without a court. And there are a lot of such cases in the courts. Usually, the owner of a larger share buys out a smaller one.

"I want to give my share"

If the owner simply decided to donate his share to someone, then he is not obliged to notify the other co-owners of this. The parties sign a donation agreement. Money can be transferred, for example, through a safe deposit box in a bank. And for the execution of this agreement, the consent of other equity holders is also not needed. Please note that such a transaction may be challenged in court. However, how can one prove in practice that it was not a gift, but a sale? This is almost unrealistic. And you also need to remember this nuance. When donating, you must pay personal income tax.

To make a transaction using the gift mechanism less secure, experts recommend doing the following. First, donate a small part of the share, figuratively speaking, only two meters. The owner of the share has every right to do so. But then, when the rest of the share is sold, the new co-owner will use the right of pre-emptive redemption, he will acquire the rest of the squares.

"I'll take money secured by real estate"

The collateral scheme can also be applied. The buyer gives the seller money on a return basis. As collateral (loan security), the seller offers a share in the real estate. But then the money is not returned, it remains for the seller. A compensation is being signed. The pledged part of the property becomes the property of the holder of the pledge.

But real estate experts warn that in this case, as, indeed, in the case described above with the use of the donation mechanism, there is some possibility that such a transaction may later be declared invalid.

What determines the cost of a share?

The cost of a share can be influenced by:

• segment of the real estate market;
• quality of housing;
• the location of the house;
• number of rooms;
• apartment area.

Realtors claim: it is more profitable to sell the entire apartment as a whole, and then divide this amount between all co-owners according to the size of their shares. But in reality, this does not always work out. If everyone sells their shares separately, then each share is worth less.

Of course, the owner himself has the right to set the price. However, the market is the market: a share in a communal apartment costs less than the same similar room, and the difference can reach 40%. This is a kind of compensation to the buyer for possible inconveniences. After all, when he buys only a share in an apartment, he gets a share in a communal apartment.

Selling shares in an apartment is always fraught with difficulties and problems. Often against this background the question arises as to whether it is possible to sell a share in an apartment without the consent of the second owner. Circumstances and attitudes can be so disloyal that it is difficult to talk about peaceful realization. More often, the sale of a share is decided in judicial procedure as this is a rather difficult segment of the real estate market.

At the same time, it is still allowed to sell the share without obtaining the consent of the other co-owner. However, everything must be done correctly so that in the future there is no possibility for the co-owner to challenge the transaction. The topic of our new material is precisely to talk about the options for selling part of the real estate, if there is no direct consent / refusal of the co-owners.

There is such a legal concept - the first stage. In this category there may be heirs, for example. The first stage gives priority over other persons. When the shares are sold, the co-owners have the pre-emptive right to purchase. They are the first line buyers.

It is to them that the seller is obliged to be the first to offer to buy out his share. An important point in that the value announced to co-owners should remain the same for other categories of buyers.

So, the seller offered to sell his share for 1 million rubles to the second co-owner, but he refused to buy it out, citing a high price. The seller received a refusal to purchase, but sold to another buyer for a lower cost. As a result, the deal was challenged, so rights were violated. The owner can only raise the cost, but not lower it. Otherwise, it will be regarded as a fraudulent move.

The same right of the first priority arises not only with direct allocated shares. There is still enough in every city communal apartments... Before starting the sale, you also need to obtain permission from the owners of other rooms. In fact, a communal apartment is a single apartment, and the rooms in it are simply its components. In their meaning, they can be considered ordinary shares, so here the neighbors act as buyers of the first stage.

Sale without consent

In general, the co-owner must provide a written waiver of his right. In a normal relationship, making such a refusal does not take time or expense. However, sometimes it is physically impossible to get a response from other owners. Just because they are missing:

• do not live or live far away;
• there is no information about the place of residence;
• recognized as missing;
• incapacitated and placed in a special institution.

The easiest way to stay in line with the law and get a response is to send a delivery receipt. Normally, the notification must be delivered personally to the addressee, while he is obliged to sign the receipt. it key moment: presence of a signature upon receipt.

Otherwise, the co-owner can challenge the deal and indicate that he did not receive anything at all. And if he proves this, the transaction can be challenged and invalidated. Even if the shareholder does not buy it later, he will drag out the terms for a long time.

You can try to contact the post office to make sure delivery and receipt. If courier delivery is used, check the information with them. All this must be done before making a deal. If after a month there is no response from the co-owner and there is a confirmation of delivery, the seller has the right to consider this a refusal and can exhibit the object.

Donation

But the practice has developed so that, avoiding all expectations, people carry out a donation agreement. By default, this is an easy way to bypass all obstacles, not send notifications and not limit yourself. The law gives the owner the right to dispose of his share, so nothing prevents him from simply donating it. Here the right of advantage for co-owners already disappears.

However, you need to understand that the courts are well aware of such a loophole. Indeed, completely strangers donate real estate to other strangers - this is strange. That is why, if it comes to challenging the donation agreement, it is important to think over family ties or especially friendly relations.

It is important to understand that if the court suspects that the donation is only a cover and in reality the purchase was made, the contract will be canceled, and the transaction may be declared null and void.

Alternative options for selling shares:

Mortgage alienation

Sometimes the method of alienation of mortgaged real estate is used. People conclude loan agreement, for which the owner of the share receives a certain amount. As material support the borrower retains a share of the property.

Then this agreement must be handed over to the MFC and registered. In the future, the borrower waives the right to his property. Lender waives claims for return Money but receives a mortgage on the property. Next, the right to transfer ownership is formalized.

As you can see, in 2017 there are enough tools to alienate a share without the consent of the co-owners. However, the difficulty of such a sale is that it is extremely rare for shares and parts of housing to be sold at all. Even communal rooms are more likely to be in demand than part of the apartment. That is why it is recommended that efforts be made to reach an agreement on the buyout between co-owners.