Russian law provides for several options for citizens to exercise the right to common property - joint ownership of property, as well as shared ownership. What is the specificity of each of them? What sources of norms govern the relevant legal relations of citizens? Does the specificity of property that is in common ownership matter?
What is common property?
According to Article 244 of the Civil Code of the Russian Federation, common property is some property that is owned by two or more persons. Its object may be including real estate. There is a common shared ownership and joint. In the first case, the owners divide the property in fixed shares. In the second, the object of common ownership is undivided.
In some cases, common ownership and joint ownership are determined based on the provisions of the law. So, for example, the property of spouses or participants in a peasant farm is determined by law as joint. Moreover, the owners can agree among themselves on how to divide the property and fix this decision, if possible, in the manner prescribed by law.
Share ownership
Let us consider in more detail the specifics of such a category as common shared ownership. This type of property implies, in particular, not only the distribution of rights to own assets in fixed shares, but also the possibility of extracting a proportionate income from the commercial use of property.
At the same time, people who own property under the right of shared ownership are obliged to bear responsibility, in proportion to their share, for the maintenance of the assets.
Total shared ownership is expressed in fractions or percent. Regarding the determination of the corresponding figures, Article 245 of the Civil Code of the Russian Federation says that the corresponding proportion is recognized equal, unless otherwise provided by law, contract or practice of relations between owners.
The value of shares can be adjusted due to the emergence of new owners, as well as the modernization of property, the leading role in which belongs to a particular owner, and this can be proved. Moreover, if the corresponding improvement in real estate can be separated in one way or another, the person who provided it can legally acquire ownership of it, without increasing the share in the main asset.
The right of common shared ownership is exercised by each of the owners of the property by virtue of the consent of all other owners. If the corresponding type of consensus cannot be established, then the disputes must be resolved in court. In some cases, according to lawyers, the court may also facilitate the resolution of disputes in the area of disposing of joint property.
Selling common ownership has a number of features. So, for example, if one of the owners decides to sell his share, then the other owners have the right to acquire it in the preemptive order. These are the provisions of the 250th article of the Civil Code of the Russian Federation. But only if it is not about selling through public bidding. If one of the owners violates this rule, then other owners may appeal the results of the transaction through the court.
We noted above that each of the owners who owns the property in shares is entitled to rely on income from the commercial use of assets. Let's consider this aspect in more detail.
Distribution of income from common property
The owner, in accordance with the provisions of Article 248 of the Civil Code of the Russian Federation, is thus entitled to a proportional distribution of any income from the use of property that is jointly owned, unless otherwise agreed by the co-owners. Moreover, if a person receives the appropriate type of income, then he is also obliged to pay tax on it in similar proportions, bear the costs associated with maintaining the property and ensuring its functionality.
Section and Highlight
Consider the mechanisms reflecting the termination of the common share ownership. There are two of those in Russian practice - section and division.
If this is a section, then under this mechanism, common ownership ceases with respect to all owners of the property. In turn, the separation from the common ownership means that only one person leaves the property. The law provides a variety of grounds for the implementation of both procedures. So, for example, a division of a common shared ownership or allotment can be carried out on the basis of mutual agreement of all owners. Another option - by virtue of a court decision. Also, a segregation is possible upon the claim by the creditors in the recovery.
Article 252 of the Civil Code of the Russian Federation says that a section, or separation, should be carried out in kind, if this is possible and does not contradict the norms of the law. However, if the corresponding procedure cannot be implemented, the owner, who must receive his part of the property as a result of the division or allotment, has the right to rely on monetary compensation. In some cases, this mechanism is put into effect on the basis of a court decision. Having received compensation, a person ceases to participate in joint ownership of property.
Joint ownership
Having studied what is shared ownership, consider the specifics of joint ownership. Its distinctive feature is that the owners carry out joint management of the property, there are no shares. However, the owners have the right to agree on some distinctions in the use of property. One way or another, one of the owners can dispose of the property, coordinating their intentions with other owners. At the same time, any owner can conclude transactions, the subject of which is disposal of relevant assets. If, however, he does not coordinate his actions with other owners, then the contract may be invalidated in court.
Section and Highlight
In principle, the rules for the division and allotment when dealing with joint property are similar to those that include the right to shared ownership. However, immediately before carrying out the relevant procedures, the owners must jointly determine the proportion for each. If they fail to do this through an agreement, the matter will be decided in court.
Co-ownership of spouses
The joint property of married citizens has its own specifics. It is reflected in article 256 of the Civil Code of the Russian Federation. It says that joint property is recognized that is acquired by the spouses after the registration of the marriage, but in the event that other conditions are not specified in the marriage contract. That is, the appropriate type of contract may look like a contract of shared ownership, reflecting the division of property, for example, an apartment, in such proportions.
It is also possible that property of the corresponding type is determined as a result of a significant increase in the value of the individual property of the husband or wife during the marriage. In turn, if the spouses lived in a civil marriage, that is, without proper registration, then their property is generally determined as separate.
Joint ownership of farmers
The joint ownership of participants in farms and farms also has certain specifics.The relevant provisions are enshrined in article 257 of the Civil Code of the Russian Federation. According to the law, the property of farmers is joint, unless otherwise specified in agreements between them or by virtue of provisions of relevant legal acts. Participants in a peasant or farm are entitled to use the property, agreeing among themselves. In this case, transactions, the subject of which is the joint property of farmers, may be concluded only by authorized representatives or heads of farms.
The farm property section also has its own specifics. In particular, if the allocation of one of the participants in the farm is implied, then, as some lawyers note, in many cases he cannot take his share in the land. However, he is entitled to receive monetary compensation, the accrual procedure of which is determined jointly with other farmers or the court.
Having studied the specifics of joint ownership, we can investigate an aspect that reflects the practice of disposing of property in shared ownership. What kind of nuances are characteristic of the corresponding procedures? First of all, it can be noted that, despite the fact that the law has sufficiently detailed rules regarding the distribution of parts in the ownership of property, in practice, the exercise of the right to dispose of property in shares may be difficult. Take the real estate example.
Share Management Practices: Sale Procedure
If a group of persons establishes a common shared ownership of an apartment, then how can each of them manage the property in practice? Take one of the most common scenarios - the sale of housing.
If we are talking about selling the apartment in full, then the consent of all owners is necessary. The same is required if, for example, a person wishes to transfer real estate as collateral. It does not matter how many people agree - even if one is against, then the transaction cannot be carried out.
At the same time, according to lawyers, even the court is not entitled to force a person to agree that the housing in which he has a share be sold. At the same time, common shared ownership of an apartment implies that a person has the right to dispose of his part in the ownership as he wants. True, in this case, difficulties may arise in determining the actual natural share. What could be the scenarios here?
If shared ownership is established in relation to a one-room apartment, in practice the allocation of the corresponding part, as noted by lawyers, is difficult to implement. However, if there is a common shared ownership of a house in which there are several apartments, then the corresponding procedure, in turn, is quite real. Especially if, for example, the number of rooms in it is proportional to the number of owners. Thus, real estate, from the point of view of the practical implementation of the procedure for the sale of shares, should be divisible.
In some cases, when allocating part of the real estate, it is permissible to attract competent specialists who are ready to carry out the correct division of housing. Another mechanism is going to court. As a rule, as a result of such hearings, the owner receives a certain amount of square meters in those parts of the apartment that, from an operational point of view, reflect the full comfort of living in it. In some cases, the court may, for example, give the person a whole room and at the same time give him the right to use the bathroom, kitchen, hallway together.
As we have noted above, other apartment owners have a preemptive right to purchase an allotment. At the same time, the participant in the common share ownership must warn of his intention to sell the share of other owners in writing, and then wait a month for their decision. In this case, the price of the actual sale should be the same as announced at the time the co-owners were provided with the relevant document.If a person wants to sell his share in an apartment cheaper, he must once again offer other owners to buy it back.
If a person sells his share in the apartment to third parties without offering to redeem it to the co-owners, the relevant transaction may be challenged in court. As a result, the owner will be obliged to return the funds to the buyer, having regained the right to own his share in return.
Share management practice: rent
Another scenario that may occur in practice is the provision of a share in an apartment for rent. By law, a similar procedure can be carried out with the consent of all co-owners. However, in practice this kind of transaction is often concluded only with the person who has found a suitable tenant. Is this rightful? According to many lawyers, no.
If, in this way, people with whom one of the owners entered into a lease agreement have settled in the apartment, then the other owners have the right to evict them by contacting the police. At the same time, according to lawyers, this is rarely done in practice, since the landlord can convince the police that, relatively speaking, distant relatives from Austria have come to visit him. By law, no one can forbid to inspire them in the order of temporary residence.
Of course, dissatisfied co-owners can also go to court. However, even if they win the case, the corresponding decision will act, as some lawyers note, only in relation to a specific group of people who moved into the premises under a separate lease agreement. If one of the owners of the apartment enters into a new lease, then to evict those who received the right to reside in the apartment in a manner contrary to the law, it will be necessary to again go to court. Therefore, such a measure, as many lawyers have noted, often does not have practical significance.
Common land ownership
We examined aspects related to how common shared and shared ownership of dwellings is determined. However, the relevant legal relationship may be specific, if their subject is land. In some nuances, the right to common ownership of land is regulated on the basis of principles that are different from those that are characteristic, in particular, for real estate. Let's consider this aspect in more detail.
Under the law, Russians can own land both individually and under the right of common property - if there are two or more owners. The legislative regulation of the relevant ownership is generally similar to other categories of property. So, for example, there is a common shared ownership of the land, and there is a joint.
Similarly to the general rules established in Russian law, the land will be in shared ownership, unless the law provides for mechanisms under which joint ownership is established. Also, if you follow the provisions of article 244 of the Civil Code of the Russian Federation, general ownership arises if its object is indivisible, that is, not subject to distribution in kind without changing the functional specificity or by force of law. As some lawyers have noted, only the second rule applies to legal relations in the field of land law. That is, a plot in common shared ownership - unless otherwise specified in the law - is subject to correct distribution in kind.
An example of a case where joint ownership is directly prescribed in legal acts - the scenario with farms considered by us above. According to article 257 of the Civil Code of the Russian Federation, the common property of farmers, including land, belongs to all members of the association on the basis of joint ownership. However, this is done if the farmers themselves have not agreed to distribute the land under other agreements.
This legal norm, therefore, belongs to the category of dispositive. However, as some lawyers have noted, Law "On Peasant (Farm) Farming" there was a provision according to which the common property of farmers is shared, unless there is a unanimous decision of the members of the association to transfer it to joint ownership. That is, we are witnessing some evolution of legislation in this area.
