Article 252 of the Civil Code of the Russian Federation in a new edition with Comments and latest amendments for 2020

1. Property in shared ownership may be divided between its participants by agreement between them.

2. A participant in shared ownership has the right to demand the allocation of his share from the common property.

3. If the participants in shared ownership fail to reach an agreement on the method and conditions for the division of common property or the allocation of the share of one of them, the participant in shared ownership has the right to legally demand the allocation in kind of his share from the common property.

If the allocation of a share in kind is not permitted by law or is impossible without disproportionate damage to property in common ownership, the allocated owner has the right to have the value of his share paid to him by other participants in shared ownership.

4. The disproportion between the property allocated in kind to a participant in shared ownership on the basis of this article and his share in the right of ownership shall be eliminated by payment of the appropriate amount of money or other compensation.

Payment of compensation to a participant in shared ownership by the remaining owners instead of allocating his share in kind is permitted with his consent. In cases where the owner’s share is insignificant, cannot be realistically allocated and he does not have a significant interest in the use of the common property, the court may, even in the absence of the consent of this owner, oblige the remaining participants in the shared ownership to pay him compensation.

5. Upon receipt of compensation in accordance with this article, the owner loses the right to a share in the common property.

Article 251. Moment of transfer of a share in the right of common ownership to the acquirer under an agreement
Article 253. Possession, use and disposal of jointly owned property

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.

What property can spouses divide?

All property that spouses acquire during marriage are recognized as their joint property (Article 34 of the RF IC). But only on the condition that they were purchased with funds from the general family budget. At the same time, for the law, it does not matter which spouse specifically contributed what amounts to this budget. Even if the wife does not work in the family, but runs the household and takes care of the children, all income is recognized as common. Exceptions are targeted payments.

In case of division, jointly acquired property is divided equally between the spouses. A departure from the principle of equality of shares is possible, but it is implemented very rarely (Article 39 of the RF IC). As a rule, in relation to residential real estate when there are minor children in the family.

If the spouses are not satisfied with the principle of equality of shares, they have the right to establish any other property regime by concluding:

Agreements on the division of common property.
Marriage contract.

It is important to know! Property received through gratuitous transactions (for example, under a gift agreement), as well as purchased before marriage, is recognized as the personal property of each person. In the event of divorce, it is not subject to division between the spouses, unless otherwise provided by the terms of the contract.
There is an exception to this rule , fixed in Art. 37 RF IC. The personal property of one of the spouses may be recognized as community property, provided that during the marriage it was significantly improved at the expense of common funds. For example, if the owner, the husband, purchased a house before the wedding, and after the marriage the spouses rebuilt it, doubling the living space.

Allocation of a share of property in common ownership

Concepts such as division and allocation of property are essentially identical terms, since they have practically the same wording. The only difference between them is that when the property is divided, shared ownership is completely terminated, and the entire property mass, previously in shared ownership, is distributed in proportion to the shared contributions of all participants in the process.

At the same time, the allocation of a property share provides that only one owner acquires personal proprietary rights to specific property, and the remaining owners of the process remain participants in the right of shared ownership.

All issues relating to such a process as the separation of a specific share from the total property mass are regulated in accordance with the provisions of Article 255 of the Civil Code of the Russian Federation. It states here that shared ownership can only be terminated by agreement between all owners of the property estate. However, this does not at all prevent individual owners from demanding the allocation of their property part.

The allocation of a property share occurs with the help of the courts, which organize the process in such a way that it meets all the requirements of the law and in no way affects the rights of the remaining parties to the agreement.

Judicial section

As practice shows, spouses rarely manage to divide property without the intervention of the court. Either spouse can file a claim for division of property.

Advice! You should not combine a claim for divorce or determination of the place of further residence of children with a claim for division of property if the spouses have claims against each other. In this case, things become dependent on each other. Making decisions on them may take several months. It is more convenient to first dissolve the marriage, determine with whom the children remain, and then file a claim with the court for the division of property.

A claim for division of a house should be filed in the district court at the defendant’s place of residence. If the plaintiff belongs to preferential categories (for example, minor children live with him), the claim can be sent to the court at the place of his residence or at the location of the divisible property.

How to write a claim?

It is advisable to entrust the preparation of the application to a professional lawyer who specializes in family and housing disputes. Or, at least get advice on the nuances of drafting.

The statement of claim is written on the basis of Art. 131 Code of Civil Procedure of the Russian Federation. It must contain the following information:

The name of the judicial body to which the claim is sent.
Basic information of the plaintiff and defendant (full name, place of residence, date of birth, details of civil passports).
Are the plaintiff and defendant married or divorced? Here you should indicate the date of marriage (dissolution) and details of the certificates.
The presence of a couple of minor children, indicating their basic information (full name, date of birth). It should be indicated which parent the children live with.
What does the plaintiff see as a violation of his property rights?
A proposal for dividing the house with references to regulations that can confirm the legality of the plaintiff’s claims.
Calculation of the cost of the claim.
List of documents attached to the application.
Date of document creation.
Plaintiff's signature with transcript.

What documents will be required?

In order for the claim to be accepted and the judge to open a case on it, it is necessary to additionally attach a list of documents. This may vary somewhat depending on the circumstances, but in general it should include:

Civil passports of all participants.
Birth certificates of children (if available). If they are already 14 years old, then their passports.
Certificate of marriage (divorce).
Title documents for the house. This could be a purchase and sale agreement, a gift agreement, etc.
Extract from Rosreestr on property rights.
Technical documentation for the building and land plot (cadastral and technical passport, extract from the BTI).
Receipt for payment of state duty.

Copies of documents are attached to the claim. The originals are presented during the hearings.

Depending on the circumstances of the case, you may additionally need a certificate from the Pension Fund about the expenditure of maternal capital or a mortgage lending agreement, etc.

The claim and documents can be filed during a personal visit to the court office, or by sending them by registered mail.

Statute of limitations

Individuals experiencing serious emotional difficulties in the dissolution of their marriage often wonder whether it is possible to divide a house after a divorce. To avoid combining complex processes. Art. 38 of the RF IC establishes a three-year limitation period for such cases. And the countdown begins not from the moment of divorce, but from the moment when the party learned about the violation of property rights. Those. More than ten years may pass after the divorce.

Advice! It is advisable not to delay the division of property after a divorce, because... after a long time, the evidence base is lost and there is always a risk of alienation of property to third parties without the knowledge of the ex-spouse.

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.

Property that is in shared ownership can be divided by agreement between all owners, and if no agreement is reached on the method and conditions of division, through the court.

Property not subject to division Certain types of property determined by law are not subject to division. In particular, such property includes: 1) indivisible things, that is, things the division of which in kind is impossible without destruction, damage or changing the purpose of the thing (for example, a car); 2) common property of the owners of premises in an apartment building; 3) property constituting a mutual investment fund; 4) property constituting the mortgage coverage; 5) monuments and ensembles, including those related to the housing stock, as well as land plots located within the boundaries of their territories. In addition, division of property in shared ownership is not allowed if it is impossible without disproportionate damage to such property. Disproportionate damage should be understood as the impossibility of using property for its intended purpose, a significant deterioration in its technical condition or a decrease in material or artistic value (for example, a collection of paintings, coins, libraries), inconvenience in use, etc. Let's consider the algorithm for dividing property located in shared ownership, using the example of real estate. An extrajudicial procedure for the division of property An extrajudicial procedure for the division of property is possible only if the remaining owners are ready to discuss the conditions of such a division and it is possible to reach agreements on the allocation of specific parts of the property to account for the shares of each of the participants. To divide property that is in shared ownership, by agreement of the parties, we recommend following the following algorithm. 1. Determine the parts of real estate for division When dividing real estate in kind, you should take into account the requirements that the real estate resulting from the division must meet. Thus, land plots formed as a result of division must comply with the requirements of the law, in particular, on the maximum minimum sizes and location of boundaries. If we are talking about a residential building or apartment, then the real estate objects formed as a result of the division must be isolated, suitable for living, have a separate entrance and independent communications. Thus, before division it may be necessary to carry out reconstruction and (or) redevelopment work. After the real estate objects resulting from the division have been formed, you should contact a cadastral engineer to carry out cadastral work, as a result of which technical and (or) boundary plans will be prepared showing the characteristics of the objects being formed. The contract may provide for the obligation of the cadastral engineer to place the technical and (or) boundary plans prepared by him for temporary storage in an electronic storage facility maintained by the rights registration authority. If provided for in the contract, the plans can also be drawn up in the form of paper documents and issued to you. 2. Conclude an agreement on the division of real estate with all owners. The agreement specifies the address, cadastral number and other characteristics of the property, information about the owners, as well as the division procedure. As a general rule, the value of the property allocated to each of the co-owners should be proportional to his share. If the value of the allocated property is disproportionate to the share, the difference may be compensated by an appropriate monetary payment or other compensation. The provision for compensation must be reflected in the agreement. The agreement is drawn up in writing according to the number of property owners and must be signed by each of them. Such an agreement does not require mandatory notarization, unless you submit documents to Rosreestr by mail. 3. Contact Rosreestr For state cadastral registration and registration of ownership rights to real estate formed as a result of the division, as well as termination of the right of common shared ownership and deregistration of the original property, the following documents must be submitted to Rosreestr: 1) identification documents of the applicants ; 2) statements from each of the co-owners; 3) agreement on the division of real estate; 4) title documents for the original property; 5) a notarized power of attorney for the representative (if the documents are submitted by the representative). If a technical or boundary plan is placed in electronic storage, the identifying number of the plan can be indicated in the application. In this case, submission of the plan itself will not be required. Documents can be submitted to Rosreestr in one of the following ways: - directly through “My Documents” (MFC) (regardless of the location of the property according to the list of departments that accept on an extraterritorial basis posted on the Rosreestr website). In the city of Goryachy Klyuch, documents for state registration are accepted only through “My Documents” (MFC), except for acceptance on an extraterritorial basis; - by postal item with a declared value when forwarding it, a description of the contents and a notification of delivery (in this case, the authenticity of the applicant’s signature on the application must be notarized, the agreement and power of attorney of the representative must be notarized, and copies of identification documents must be attached); - in the form of electronic documents via the Internet, for example through the official website of Rosreestr. To register property rights, you must pay a state fee. It is not necessary to submit a document confirming payment of the state fee along with the application. The applicant has the right to do this on his own initiative. However, if there is no information about the payment of the state duty in the State Information System on state and municipal payments, after five days from the date of filing the application, Rosreestr will return the application and the documents attached to it without consideration. Amount of state duty The amount of state duty for registering ownership of newly formed real estate is: - 350 rubles. - in relation to a land plot intended for personal subsidiary farming, dacha farming, vegetable gardening, horticulture, individual garage or housing construction; — 2,000 rub. - in relation to other real estate objects. If it is possible to submit an application and pay the state fee through government services portals and other portals integrated with the Unified Automated Identification of Information and Logistics, the state fee is calculated taking into account a coefficient of 0.7. If at the time of submitting the application the state duty has not been paid, the applicant is issued or sent information containing a unique payment identifier (unique accrual identifier) necessary to confirm the fact of payment for a specific service, indicating the date by which it must be paid. 4. Receive documents after cadastral registration and state registration Cadastral registration and state registration are carried out within 10 working days from the date Rosreestr receives the application and documents. If the application was submitted through “My Documents” (MFC), then the period for consideration of the application will be 12 working days. This period begins on the next working day after the date of receipt of documents. State registration and cadastral registration are certified by an extract from the Unified State Register of Real Estate, which can be sent to you electronically. Judicial procedure for the division of property If an agreement on the method and conditions for the division of property in shared ownership could not be reached, the interested owner has the right to demand the allocation in kind of his share from the common property in court. Other owners also have the right to file counterclaims for the allocation of their shares in kind with the termination of the right of shared ownership of the property. To divide property in shared ownership in court, we recommend adhering to the following algorithm. 1. Prepare a statement of claim and the necessary documents. In the statement of claim, you should identify the real estate property (indicate the cadastral number, address, area, other characteristics), describe the nature of use of the property that has developed between the owners, indicate which part of the property should be allocated to the plaintiff and which to the defendant, as well as the amount and calculation of compensation (in case of disproportionate share). The following documents should be attached to the statement of claim: 1) documents confirming the possibility of division (allocation) of real estate, for example, a conclusion from a construction and technical organization on the possibility of the proposed division (allocation); 2) legal documents for real estate; 3) a receipt for payment of the state fee for consideration of the case in court, the amount of which, as a rule, is calculated based on the price of the claim; 4) copies of the statement of claim according to the number of defendants and third parties. Depending on the circumstances of the case, other documents may also be required. 2. File a statement of claim with the court and take part in the court hearing. The statement of claim is submitted to the court of general jurisdiction at the location of the property. During the trial, to resolve the issue of the possibility of the proposed allocation and the proportionality of the allocated part to the owner’s share, the court may order a judicial construction, technical, land management and assessment examination in the case. To resolve a legal dispute, you may need qualified legal assistance. If a corresponding written petition is filed, the court may recover the costs of paying for the services of a representative in full or in part from the defendant. 3. Contact Rosreestr By analogy with an out-of-court settlement of the issue, in the event of a positive court decision on the division of property or the allocation in kind of a share in real estate, it is necessary to carry out cadastral registration and register ownership of the property. To do this, the following documents must be submitted to Rosreestr: 1) an identification document of the applicant; 2) application for state cadastral registration and state registration; 3) a court decision that has entered into legal force in two copies; 4) a notarized power of attorney (if the documents are submitted by a representative). The procedure for submitting documents, as well as paying state fees, is similar to that described in step 3 of the out-of-court section.

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.