Article 256 of the Civil Code of the Russian Federation. Common property of spouses (current version)

According to the law, the division of property is carried out with the aim of securing ownership rights to certain property or a share in property. The rules applied when dividing property are regulated by the norms of the Civil Code of the Russian Federation (Civil Code of the Russian Federation). The basic rules applied in the division of property rights consist of the following articles:

• Art. 244 Civil Code of the Russian Federation. This article explains what is common property, as well as in what cases common property arises;
• Art. 253 Civil Code of the Russian Federation. The article defines the rights and rules of ownership, use and disposal of property that is jointly owned;
• Art. 254 Civil Code of the Russian Federation. This rule regulates the procedure for dividing property that is jointly owned, as well as the rules for allocating a share;
• Art. 255 of the Civil Code of the Russian Federation. The article establishes the procedure for foreclosure on a share in the common property of spouses;
• Art. 256 of the Civil Code of the Russian Federation. The article defines property that is the common property of spouses.

The listed standards are not exhaustive . The division of property may include many related nuances and key points, in resolving which it may not be enough to be guided only by the Civil Code of the Russian Federation.

Joint by law

Comments to Art. 244 of the Civil Code of the Russian Federation explains that any property belonging to several owners is common joint property. Co-owners can divide it among themselves, allocating a part to each, after which, with some exceptions, it becomes common property. Cases when property can only be common property, that is, it is owned jointly by several people, occur due to legislative provisions and apply:

• on the property of the spouses;
• for joint ownership of dacha or garden organizations (various partnerships or cooperatives);
• to the property of peasant livestock farming associations.

The common property of the above categories is always joint; in the event of division, it passes to each participant as private, rather than shared, property.

Allocation in kind of a share of property in shared ownership

The separation of property from the general mass is characterized by the fact that a specific part of the property interests will be transferred into personal ownership of a specific owner, and this property will no longer take part in the process of disposing of the property interests that are in shared ownership.

In accordance with the current provisions of the Civil Code of the Russian Federation, each owner at any time can demand the allocation of his part of the property in kind. However, it is worth paying attention to the fact that this process should not violate legal requirements. Based on this, it can be argued that the division of property in shared ownership in kind occurs only in cases where there are no conditions that are recognized as unsuitable at the legislative level.

Thus, the allocation of property in kind can be carried out in situations where this does not entail disproportionate damage to the total mass of property, and does not contradict the conditions specified in Articles 252 and 254 of the Civil Code of the Russian Federation.

Spouses' property

The Family Code of the Russian Federation states: all property acquired jointly in a legal marriage is common, unless other conditions are specified in the contract between the spouses. The right to common ownership belongs to the husband and wife equally, and does not lose force if during the marriage relationship one of the spouses does not receive independent income (health, childcare, household or other reason). Regardless of which spouse acquired or registered the property, the following will be considered common:

• income from work experience, entrepreneurship or investment activities;
• real estate and other property, funds for the purchase of which were used from the cash family budget, including jewelry, securities (company shares) or things (antiques);
• social benefits, monetary compensation, lottery winnings and other profits.

Property inherited or received as a gift by one of the spouses, as well as personal items of everyday use, such as clothes, shoes, etc., are not included in the list of joint property.

Commentary on Article 244 of the Civil Code of the Russian Federation

1. The law (clause 2 of article 244) distinguishes between two types of common property: shared and joint. Shared property refers to property in which the share of each of its participants is determined, joint property refers to property without determining the shares.

In joint ownership, the community of property is expressed to a greater extent than in shared ownership. This is explained by the fact that relations between participants in joint ownership (between spouses, members of a farm, etc.) are much more trusting and stable than relations between participants in shared ownership, which may be quite distant, or even alien to each other. . The above, however, does not mean that there are no shares in joint ownership at all. The difference here is that with shared ownership, the shares of each of its participants are, as a rule, determined in advance, while with joint ownership, the shares are determined only upon division or allocation of common property, i.e. from the moment of termination of joint ownership relations for either all or part of its participants. In this case, shares in both shared and joint (under the above circumstances) ownership are assumed to be equal, unless otherwise established by law or agreement (see paragraph 2 of Article 245, paragraph 2 of Article 254, paragraph 3 of Art. 258, paragraph 2 of article 259 of the Civil Code, article 39 of the Family Code).

2. The share, if determined, receives quantitative expression in the form of a fraction or percentage. It can be expressed as 1/2, 1/3, etc. or in the form of 50%, 75%, etc. A purely quantitative expression of a share does not yet reveal its legal nature - whether the participant in common property (regardless of its type) owns a share in the property, in the value of the property or in the right to the property.

The Civil Code provides that a participant in common property has a share in the right to common property. This design has a number of theoretical and practical advantages. Firstly, it is emphasized that the right of each co-owner is not limited to any specific part of the common thing, but extends to the entire thing, incl. on the income that the thing brings and the burdens that fall on it. Secondly, the indication remains that the object of this right as property right is a thing. Thirdly, since the rights of other co-owners also apply to all property as a whole, the characterization of common property as multi-subject is not called into question.

3. Common ownership of property may arise regardless of whether it relates to indivisible property, to property that is not subject to division by force of law, or to divisible property. If the property is one that cannot be divided without changing its purpose, i.e. to indivisible, or is not subject to division by force of law, then common ownership of it arises as a result of the inherent functional qualities of the property or its legal regime. If the property is divisible, then common ownership of it arises only in cases provided for by law or contract. For example, the heirs agreed that the furniture that they inherited from their parents, although it does not constitute a set, will not be divided, but will remain their common property.

4. The law has different approaches to determining both the grounds for the emergence and the circle of participants in common shared and common joint property. The grounds for the emergence of common shared ownership have not been fully defined. It can arise in cases directly provided for by law, and in cases provided for by agreement of the parties, a court decision, as well as due to other circumstances leading to the formation of common shared ownership.

Thus, common shared ownership of property in a condominium arises by force of law, and of property acquired by spouses during marriage - by virtue of a marriage contract concluded between them. Common shared ownership can also arise as a result of circumstances beyond the control of people. For example, a forest belonging to one logging organization was taken over by another organization. Since the logs were not equipped with a special mark, common shared ownership of the indicated organizations in the timber intended for rafting was formed.

The circle of participants in common shared ownership is not limited by law. They can represent various forms of ownership in any combination. Common shared ownership is possible between citizens, citizens and legal entities, between legal entities, the Russian Federation and its constituent entities, municipalities, citizens, etc. Thus, with partial escheat of hereditary property, the emergence of state property, on the one hand, and private property of citizens and legal entities, on the other, is possible. At the same time, the law does not prescribe the mandatory termination of the common property of entities representing various forms of ownership, as was the case before (cf. Art. 123 of the Civil Code of 1964). On the contrary, common joint property can arise only in cases provided for by law, and the circle of its participants is strictly defined by law. According to current legislation, only citizens can be participants in common joint property. These are spouses if their property is subject to the legal regime of marital property (Chapter 7, Section III of the Family Code); members of a peasant (farm) enterprise (clause 1 of Article 258 of the Civil Code); family members who privatized an apartment with the establishment of common joint ownership (Article 2 of the Law on Privatization of Housing Stock).

Federal Law of May 15, 2001 N 54-FZ “On Amendments and Additions to the Civil Code of the Russian Federation and the Law of the Russian Federation “On the Privatization of Housing Stock in the Russian Federation”, as amended by Art. 2 of the Law on Privatization of Housing Fund has been amended. From Art. 2, the words “joint or shared”, which were previously placed in brackets following the characterization of ownership of residential premises transferred to several family members as common, are excluded. The corresponding provision is now formulated in the Law as follows: “Residential premises are transferred into common ownership or into the ownership of one of the persons living together, including minors.” The exclusion of the above words from the text of the Law means that common ownership of residential premises transferred through privatization to several family members living together can only be shared (except for the common joint property of spouses). This conclusion follows from paragraph 3 of Art. 244 of the Civil Code, according to which common ownership of property is shared, with the exception of cases when the law provides for the formation of joint ownership of this property. But if before the entry into force of the Law of May 15, 2001 N 54-FZ, i.e. before May 31, 2001, residential premises had already been privatized into the common joint property of family members other than spouses (for example, father and daughter), then in relation to them, taking into account the rule “the law does not have retroactive effect,” the previous one may remain legal regime.

This is confirmed by the Federal Law of November 26, 2002 N 153-FZ “On introducing an amendment to the Law of the Russian Federation “On the privatization of housing stock in the Russian Federation”, which proceeds from the fact that if the residential premises are privatized into joint ownership of family members before May 31, 2001 g., then the legal regime of joint ownership, which was established for it by the participants in the privatization, remains in force. Therefore, in the event of the death of one of the participants in joint ownership of residential premises, their shares in the right of common ownership of this premises are recognized as equal, unless federal laws establish otherwise for certain types of joint ownership. In particular, deviations from the beginning of equality of shares of spouses in common property are allowed under certain conditions by Art. 39 of the Family Code.

The Law on Gardening, Gardening and Dacha Non-Profit Associations of Citizens extends the joint ownership regime to common property acquired or created by a non-profit partnership at the expense of targeted contributions from its members. The specified property is classified as joint property of the members of the partnership (paragraphs 1 and 2 of Article 4 of the Law).

By the very essence of joint ownership relations, property can be in common joint ownership only of individuals, and even then in cases expressly permitted by law.

5. Since the formation of common joint property is allowed only in cases provided for by law, and, moreover, the circle of participants in such property is strictly defined, the law enshrines a presumption according to which common ownership of property is assumed to be shared. However, this presumption is rebuttable. In some cases, it refers to joint ownership, since the contract does not provide otherwise; in others, the law provides the participants in common ownership with the opportunity to choose between the legal regime of shared or joint ownership. The first option includes cases of formation of common property of spouses (clause 1, article 33 of the Family Code) or members of a peasant (farm) household (paragraph 1, clause 3, article 6 of the Law on Peasant (farm) farming); under the second - cases of formation of common ownership as a result of the privatization of an apartment before May 31, 2001, since the law until that moment allowed for the establishment of both shared and joint ownership of an apartment, leaving the decision on this issue at the discretion of the family members themselves who privatize the apartment.

Finally, when joint ownership of members of a horticultural, gardening or dacha non-profit partnership is formed on property of common use acquired through targeted contributions from members of the partnership, the determination of the shares of the members of the partnership in such property occurs when they leave the partnership or during the reorganization or liquidation of the partnership (subclause 6 and 7, paragraph 1, article 19, paragraph 1, article 42 of the Law on gardening, gardening and dacha non-profit associations of citizens).

Rights and obligations of spouses, property division

Husband and wife dispose of common property by mutual consent and on equal rights. When purchasing real estate by one of the spouses, the transaction will not be registered with government authorities unless there is permission from the other spouse, certified by a notary. The spouse who did not give consent to the purchase, within a year after its completion, has the right to apply to the judicial authorities with a demand to declare the transaction invalid.

The division of common joint property between spouses at the initiative of any party is possible regardless of whether the husband and wife are in a legal relationship at that moment or whether the marriage has been dissolved. If a married couple makes a division without dissolving the marriage, then the property acquired subsequently will again be in common joint ownership. If the spouses divide it by mutual agreement, the agreement with the list and procedure for transferring the property into private ownership is certified by a notary to each. If the property dispute cannot be resolved independently, this is dealt with by the authorized bodies in accordance with the Legislation of the Russian Federation. In court, property will be distributed equally between the spouses. Derogation from equality is allowed by the court in favor of a spouse who is raising children under the age of majority, or the property of the spouses was spent by one of them to the detriment of the family.

Statute of limitations

During this period, the legal claimant to the share can exercise its rights. The total period is three years. The calculation of this period begins from the date when the plaintiff became aware of the violation of his rights or the date when he should have learned about such a violation. For persons who are not parties to a void transaction, a period not exceeding 10 years is applied.

If the transaction is contestable, 1 year is given for recognition of its invalidity from the moment the threats or violence ceased or from the day when the initiator of the lawsuit became aware of other relevant circumstances.

Agricultural and peasant associations

Farms and dacha associations spend funds for the purchase of property from the general fund, which is replenished through systematic contributions from the participants of these associations. All property of a public association belongs to its members in equal shares, is used by consent and is joint, unless other conditions are provided for by the participants. When one of the members leaves the association, no division of property is carried out, but the participant is entitled to compensation in the form of monetary remuneration, in proportion to the size of his contribution. Upon liquidation of the partnership or the withdrawal of all members from its composition, property is divided by the judicial authorities in accordance with the Legislation of the Russian Federation. The division is carried out with the deduction of creditors' recoveries, if any, the interests of each participant are assessed equally.

Features of property division

For convenience, here is a table of the emergence of one or another form of ownership that is formed after the division of common property:

General joint ownership under the Civil Code of the Russian Federation arises both by force of law and under other circumstances. A striking example will be the privatization of public housing in apartment buildings by living citizens or cars, houses, apartments or country houses and land plots inherited by relatives. In the listed cases, citizens will have property in joint ownership, the ownership and disposal of which the participants have equal rights to. Equal things, for example, two identical bicycles, will not be difficult to distribute between two owners; on the contrary, dividing a piano between two, or even more, owners or precious earrings is a question with an asterisk.

If it is necessary to divide common property, this happens by agreement of the parties or by law, inevitably confronting the question of what to do with indivisible property. The Civil Code of the Russian Federation explains that objects that, when divided, lose their functions or purpose, are called indivisible. In other words, things that, if necessary, will have to be broken or disassembled into parts, thereby making them useless for further use, are indivisible. Indivisible property, if agreement is not reached by the parties, is awarded in court to one of the co-owners, while the remaining participants are entitled to financial compensation in an amount proportional to the value of the property. If there is no need to naturally separate your part, each co-owner can be allocated a share in the right of ownership, and the property will become common property.

The procedure for dividing joint property

Division and allotment of joint property , that is, in a situation where the shares in the right are not determined, are allowed only after the part of each co-owner has been established.

In this case, the division is carried out in accordance with the following principle: by default, if there are no legal grounds or agreement of the co-owners (for example, a marriage contract), the shares of the interested parties will be equal. In other cases, the division procedure takes place in accordance with specific provisions of civil law.

So, for example, when dividing an apartment received by inheritance, the share of each legal successor is determined in this case on the basis of inheritance rules.

When it comes to the property of spouses, the legal procedure for the division of property in this case is regulated by the RF IC, and if there is a marriage contract, the division is carried out in strict accordance with its provisions.

From the total amount of property jointly acquired during the marriage relationship, even in the absence of the husband or wife’s consent to divorce, the following is excluded:

• property acquired outside of marriage;
• received after registering the relationship free of charge (inheritance, donation);
• personal items that are used only by one spouse, if it does not belong to the category of luxury goods;
• intellectual property of one of the spouses, with the exception of income received from its sale.

When dividing property acquired during marriage, a spouse, at the expense of whose personal funds or personal property the initial cost of the object subject to division has significantly increased, has the right to claim a larger share. For example, if a spouse sold an inherited apartment and invested the money in major repairs, reconstruction or re-equipment of the property.

The age of the children does not matter during the division, but if the plaintiff decides to divorce his wife with a child under one year old, the divorce may not be filed (only with the consent of the spouse).

Sometimes spouses are interested in when they can divide property, during the divorce process, when they are just about to get divorced, or after receiving a certificate from the registry office. Experts recommend acting based on specific situations. Division can be carried out within a marriage (through a prenup or voluntary agreement), at the same time as divorce proceedings, or after their completion within three years.

Common lobe

Co-owners have the right to establish, according to the actual contribution of each participant, the size of their share in the common property. If the agreement between the owners does not provide for other conditions, and it is impossible to establish proportionate investments, the shares are equal. If controversial issues arise, the amount is established by the judicial authorities in accordance with the Legislation of the Russian Federation.

A shared owner who makes changes (at the expense of personal expenses) that contribute to the improvement of the common property has the right to increase his share or, if the improvements made are separable, to register them as private property, provided that no other conditions are specified in the agreement between the owners.

Important! The allocated share in common property does not mean a separate part of a certain object, but a part in the right to own it. The property itself is united and not divided in kind.

If one of the co-owners does not agree with the terms of the division, is not satisfied with the method or due to other circumstances, he has the right to separate his part in kind. If it is impossible or unacceptable by law to do this without causing any damage to the property, the co-owner has the right to demand payment of the monetary value of his part by other participants in the common property. Financial compensation for the natural allocation of a share is permitted by law only with the consent of the shareholder, but if the part is insignificant and it is impossible to separate it in kind or the co-owner does not actually use the common property, the court has the right to oblige other shareholders to pay compensation without his consent. After the co-owner receives the funds, his right to a share in the common property is lost and distributed among the shareholders who participated in the redemption.

Impossibility of dividing property in shared ownership

At the legislative level, all necessary conditions have been created to protect the rights and interests of all owners of property assets that are in shared ownership.

Article 252 of the Civil Code of the Russian Federation regulates that in some situations the allocation of a property share in kind cannot be carried out, since this process can spoil the property or change its original properties and characteristics.

However, at the same time, clause 2, part 4, article 252 of the Civil Code of the Russian Federation contains an indication that each owner of a part of the property can at any time put forward demands for the allocation of his part. In such a situation, when the law establishes restrictions on the allocation of a share of a property interest in equity terms, the applicant will be entitled to proportionate compensation in cash equivalent, which will be equal to his property share.

When spouses divorce, indivisible property can also go to two owners at once, who will establish the right of shared ownership. However, it is worth noting that during a divorce, the court will offer one of the spouses to buy out the share of the other, providing appropriate compensation.

Sale of real estate shares

To sell a share in an apartment or private house that is in common ownership, the same legal provisions are observed as when selling part of any other common property. Buying 1/5 of an apartment means acquiring an equal share of the ownership of this home. This is not about buying a specific room with a designated living space, as in communal apartments or dormitories, where the rooms are individual objects separated from the general volume. A 1/5 share offered for purchase, for example, may be part of both a one-room and a three-room residential space, and the rights to use and dispose of it in this case will be the same for the five owners.

And the right to be the first to purchase a share from co-owners of common housing is also fully valid. A portion can be sold to unauthorized persons no earlier than a month after the shareholders have been notified in writing of the sale, and only after the co-owners refuse to purchase the alienated share.

The owners carry out the disposal and use of common property by consent and on an equal basis. Everyone owns their part and looks out for each other's interests. Possible income received from the operation of common property is distributed by the parties in proportion to their shares, as well as maintenance costs, unless other conditions have been agreed upon by the owners. Co-owners of common property have the right to donate, sell, rent, pledge or carry out other actions with the part belonging to them, observing the legislative provisions of the Russian Federation.

According to Art. 250 of the Civil Code of the Russian Federation, participants in common ownership have the right of first buyer when buying out the share of a co-owner at the same price and on the same conditions that were offered to third parties. The seller is obliged to notify the co-owners in writing about the sale of a share of the common property so that it can be purchased by other participants. After the date of receipt of the notice, deadlines are established if the share in real estate is 30 calendar days, other property is 10, after which the seller has the right to sell his share to third parties. If the right of the first buyer is violated, each participant in shared ownership may file a claim with the judicial authorities in order to declare the transaction invalid and return pre-emptive rights to purchase. The same conditions are observed by co-owners in relation to each other when alienating part of the common property under an exchange agreement. It is not permitted by law to assign the preemptive right of the buyer of a share in favor of unauthorized persons.

An exception is the sale of property shares at auction. In case of collection of a debt from a co-owner of common property, the creditor may file a petition with the judicial authorities for the in-kind allocation of the debtor's part. If other participants refuse to buy the share, the creditor has the right to demand the sale of the debtor's property at auction to pay off his debt.

Agreement on the division of property in shared ownership

Such a concept as the right of shared ownership is provided for by valid civil legislation and implies joint ownership of certain property, in which each individual owner has the right to dispose of only a certain part of it. In this case, the shares of property interests of different co-owners may be unequal.

Shared ownership can arise both on a voluntary and compulsory basis.

In the latter case, a similar court decision can be made in relation to divorced spouses. If there is a situation in which the spouses are divorced and at the same time have joint property divided between them in shared terms, they can use this property on the basis of previously concluded agreements, or they can start a process such as the division of property located in shared ownership.

If all owners could not reach a consensus, then in such a situation the final decision will remain with the court. It is the court that is entrusted with the obligation to allocate the share of each of the owners on a legal basis.

In the event that the separation of property occurs on the basis of legal entities, a written agreement must be concluded between all owners of the property, which will regulate issues regarding the specific size of the property mass that is subject to separation, as well as the rights and obligations of all parties that remain in the company as co-owners of property interests.

Natural division of real estate

Taking into account possible inconveniences in the disposal and use of common-share housing, each of the co-owners, if the technical characteristics of the object do not prevent this, has the right to demand the allocation of a share in kind. By means of an agreement, the rights and procedure for using real estate are distributed between the owners, and the isolated living areas of each owner are determined. Household utility rooms, such as the kitchen, bathroom and others, can be used according to an agreed schedule and remain jointly owned. The agreement between the co-owners is drawn up and certified by a notary, after which it must undergo state registration, and the property becomes private property in whole or in part.

If the owners fail to reach an agreement peacefully, the issue of natural division of common housing is resolved by the judicial authorities, observing the law and the procedure for its implementation. The decision of the judicial authorities on the natural division of real estate is due to the emphasis on the technical characteristics of the property, such as the possibility of a separate entrance not only to living rooms, but also to utility rooms. If it is technically impossible or if there is a high risk of damage to the premises during division, the court may oblige the dissenting co-owners to buy out the applicant’s share. The financial value of any residential property can be determined by contacting an authorized company that conducts an independent assessment of the property. If a price dispute arises, a forensic examination may be ordered.

The laws of the Russian Federation will help find solutions to any issues, but the best way out of any situation is a compromise.