How to allocate a share in kind in a residential building

When dividing home ownership, the rights to use and dispose of the property of all owners must be taken into account. The possibility of their implementation should not cause inconvenience to other co-owners. The allocation of a share in a residential building in kind should include the opportunity for all owners to have an independent entrance to their part of the premises, to have their own part of the site, as well as an entrance to it.

If, during the allocation, there is no possibility of equipping a separate passage to the site, then a part of it will be given for general use. Allocation is the only opportunity for each owner to fully dispose of his property.

Nuances of separation from common property

First, let's understand the meaning of such a complex legal term. The process of separating a part of real estate in kind means that a certain owner takes his own from the common property.

The remaining part (or parts) remains in the possession of another person (several people) as soon as his property.

After the allocation of parts, each owner receives the right to do any actions with his property:

• increase;
• register as collateral;
• present;
• sell, etc.

No person has the right to carry out such legal transactions, owning only a share of the common property, without the consent of the remaining co-owners.

There are some important points when allocating a share in kind in a residential building from common ownership, failure to comply with which violates the Civil Code:

• no allocation is provided for apartments. The reason for this is that the technical characteristics of the room do not allow this procedure. A separate entrance is one of the main components of the procedure. This is not possible for an apartment in an apartment building;
• after allocation, this part of the property must receive its own address. He cannot be the same as the others;
• If a residential building or plot is burdened with debt, then the debt will also be divided among the users;
• if the allocation of the rightful owner's share from the common property in kind is not possible for some reason, the co-owner who wishes to do so has the right to receive financial or other compensation from the co-owners;
• a property containing unauthorized buildings is not subject to division. This issue can only be raised after the ownership of them has been recognized.

Where to begin?

The first step when allocating a share in common property is to discuss this issue with other users. If they do not object to the allocation and there is an agreement on the use of some premises, then it is possible to do without a trial.

If agreement on the method and conditions of the process is not reached, then the person who wishes can demand in court the allocation of his share from the common property.

The whole difficulty lies in the fact that the co-owners are trying to divide the property, as they say, “by eye”, forgetting to look at the title documents.

Many are trying to forcefully obtain more of the real estate than they should have, and they are installing their own fences. For another user, this entails the inability to feel like a full owner.

How to allocate a share in kind in a residential building

The law allows for the separation of a part of the property, the division of residential property, and the division of a land plot.

If we are talking about separation, then the relationship of common partial ownership will be preserved. They will be terminated only for the separated person. Under the second option, single partial ownership will be terminated.

The right of a co-owner to allocate will be exercised by signing a document on the allocation in kind of a share of real estate joint property.

The agreement must be drawn up by a notary with an inventory of separately located entire structures, residential and non-residential buildings, that are allocated to the parties. If agreement has not been reached, the issue will be resolved by the court.

In any case, construction and technical developments are required to place boundaries. They will determine the likelihood of division of home ownership or separation of shared ownership.

The examination will offer options on how to divide buildings and structures between users, which ultimately also requires registration at the state level.

Step-by-step instructions for allocating a part in a residential building

Stage 1. First of all, you need to visit the BTI and order a technical passport of the building. There you can also order a certificate of the possibility of separating the share of a residential building from the property.

This certificate can be obtained at any institution whose specialization is construction and technical expertise. This document is important as an evidentiary basis that it is possible to separate the part, and it corresponds to the value of the percentage being separated.

Stage 2. If the allocation of a house is possible by agreement of the owners, i.e. the participants have reached a peaceful agreement, the corresponding document is drawn up in writing according to the number of owners. Everyone must sign the agreement. Notarization is not required.

If a trial cannot be avoided, then a statement of claim is written in the name of the remaining co-owners of the property. A residential building is described, in which a part is subject to separation. It also describes the use of the premises and that which “goes” to the account of the separating one.

If this is not proportionate, a description of the compensation should be made in writing. The number of copies of the petition must correspond to the number of defendants. It is submitted to the general court at the address where the real estate is located.

The following documents are attached to the application:

• technical certificate;
• documents confirming the ownership rights of the willing user to the branch;
• certificate of possibility of surgery;
• a check with payment of the state fee for the fact that the case will be considered in court. Its amount is calculated relative to the “new” element.

Stage 3. If the court makes a decision in favor of the plaintiff, then the allocation of legal shares in kind in this house must be registered. The separating owner registers ownership rights to only his real estate, other participants - changes in ownership rights. This is done by the Federal Service for State Registration, Cartography and Cadastre.

Stage 4. Over the next ten days, the government agency is obliged to prepare new documents for registering property rights.

Practical and technical issues when allocating a share

In practice, dividing property can be quite difficult. The reason for this is the tiny size of the room.

There are alternative ways to resolve this issue:

• the allocation of a share to a willing branch can be replaced in monetary terms;
• The size can be adjusted up or down. The difference is compensated in monetary terms.

List of documents for division of real estate

As already written above, when considering a situation out of court or in court, you cannot do without the following documents:

• those. passports for residential premises;
• technical conclusion about the possibility of separating the part in kind;
• certificates of title of co-owners to the property.

• an application for state registration on behalf of each owner;
• proof of ownership by papers;
• act of consent to the procedure. The number of copies is equal to the number of owners, an additional copy for the government agency;
• civil passports of applicants or power of attorney for a representative;
• if the house was allocated through the court, then a court decision in two quantities with a note about entry into force.

May also be required, but not required:

• papers confirming the actual use of the house and site;
• house book as confirmation of the presence in the house of people other than the owners.

Arbitrage practice

Today, this development of events occurs most often in the courts. Regardless of everything, the court orders an examination from an accredited organization. Even if the parties have already prepared an expert opinion on the possible outcome of the division. And when making a decision, it is the latest expert assessment that will be of primary importance.

The purpose of this is for the user to receive exactly that inheritance after separating from the totality of a residential building, land plot and building according to the shares that belong to him by law.

There are characteristic signs that the court always pays attention to:

• the house must remain suitable for use, damage to structures is unacceptable;
• third parties and their rights should not be affected;
• significant redevelopment will not be required, and the actual shares will correspond to the required area, SES standards and residential property rules.

The courts consider the possibility of separating part of the house carefully. But owners do not always agree with the verdict. Challenging a court decision regarding the allocation of a house in kind is not uncommon.

The allocation remains the same, since the court changes its decision on the allocation in kind extremely rarely.