The Institute of General Property in the Russian Federation is represented by two main models of property ownership - joint and shared. What is the specificity of each of them? How is the formation of the right to own property carried out jointly? How is the division and allocation of part of the asset in the sole possession of a citizen?
The difference between joint ownership and equity
Joint ownership is one of the subspecies of the model for the common ownership of certain property by several citizens under the laws of the Russian Federation. Its distinguishing feature is the absence of specific shares in the ownership of assets. What is “common property”? The definition of this term sounds simple - property that is owned by two or more persons at the same time. Each of the co-owners can own a specific share in the property. In this case, the common ownership model is just the same.
With joint ownership, people own property, managing and disposing of it exclusively in the framework of collegial decisions. Common ownership in this sense is an indivisible asset. You can sell it, give it, share it only on the basis of personal agreements.
Types of joint ownership
The common joint property, despite its wide distribution, can be represented, if you follow the provisions of Russian law, in a relatively small range of varieties. Firstly, such may be joint ownership of spouses, for example an apartment. Secondly, common joint ownership can be observed within the collective organization of peasant farming.
There were periods in the legal history of the Russian Federation when the corresponding model of property ownership could be formed, for example, upon the fact of privatization. But over time, amendments were made to the legislation of Russia, according to which, upon the fact of privatization, a person could get only a certain share in the common property.
Disposal of property in joint ownership
We noted above that citizens can dispose of property in joint possession, coordinating all actions among themselves. Let's consider this aspect in more detail.
The common property within the framework of joint ownership, thus, gives each owner the right to make transactions on his own behalf that reflect the disposal of the property. In this case, all actions must be coordinated with other owners. If this does not happen, then transactions may be declared, in particular in court, invalid.
At the same time, as some lawyers note, property co-owners are entitled to revoke a transaction made without their knowledge only if it is proved that acts of disposing of the property, which is jointly owned, were committed by other owners who realized that they did not have authority to take appropriate actions . That is, the court can cancel the transaction in the suit of the wife against the husband for the rental of the apartment, if she proves that her husband was aware that she was against renting the property, but, despite this, she made an agreement with tenants.
Joint ownership section
The common ownership of property may be divided in the manner prescribed by law.What is the specificity of this procedure? One of the key provisions of the law regarding the division of common property is the need to determine in advance a specific amount of shares for each of the future owners of the property. Moreover, if you follow the provisions of Article 254 of the Civil Code of the Russian Federation, the shares in question are recognized equal, with the exception of cases provided for by law or under private agreements of the parties.
In general, the procedure under which the joint ownership is divided is similar to the algorithm characteristic of the procedure when a share in the total shared ownership is allocated. Unless, of course, otherwise provided in legal acts or does not follow from the characteristics of communications between owners.
Common property of spouses
We noted above that one of the envisaged models for joint ownership of property implies the fact that the subjects of such legal relations are married. What are the features of property management implemented in this scenario? What is the specificity of such a legal category as common joint property of spouses?
The main mechanism for the formation of property that married citizens will own within the framework of this model is the acquisition of property during the period of cohabitation. The Family Code of the Russian Federation at the same time provides for two main formats of property relations between spouses - based on the law, and also based on the contract.
What are the features common joint ownership of spouses in the first scenario? This legal regime of ownership of property is effective by law, and it is relevant if there are no other conditions in the marriage contract. This is a property that was acquired during the period of joint residence of the spouses. What types of property can relate to it? If you follow the provisions of the law, it can be income - in the form of salaries, business proceeds, sales of intellectual products, pensions, social benefits. Also, the concept of common property formed in the process of joint residence of spouses includes property, securities, shares in enterprises. Moreover, in the general case, as lawyers note, it does not matter who has put more effort into the acquisition of certain assets - husband or wife.
The property that belonged to each of the citizens who are married, before the official registration of their relationship, belongs to them on the basis of personal property. The Family Code also provides for a scenario in which property that a husband or wife acquired during periods when, for whatever reason, lived separately, also belongs to each of them on the basis of personal ownership.
Another feature that characterizes the common property of spouses is the presence of a mechanism for establishing a model of joint ownership, if it is fixed that in the process of living in a marriage the husband or wife invested some resources in the property of the spouse so that the value of the assets increased significantly. This may be, for example, large-scale repairs in the apartment, re-equipment of one type of room to another.
Spouses may dispose of joint property, coordinating among themselves the proposed actions. Moreover, if a particular transaction with property by one owner requires notarization, then the consent of the co-owner must also be certified by a notary. If the corresponding document is not executed, then the transaction may also be declared invalid.
An interesting fact is that according to the documents the owner of the property can be one. For example, if it is an apartment, then only its full name can be indicated in the certificate of registration of ownership as its owner. husband. However, if the property was purchased by him during the marriage, then his wife will also be considered as his other full owner.It can also be noted that due to the joint management of property, owners are also obliged to maintain it together, pay taxes established by law, etc.
Division of property in marriage
The common property of the spouses is subject to division, as a rule, only after a divorce. However, this procedure is also possible during the period when citizens are married. Similar scenarios are acceptable in such cases:
- one of the spouses decided to demand a division of property;
- a creditor with good reason has demanded a division of property in order to sell a share in the debt account;
- the spouses agreed to divide the property.
As we noted above, the proportion of the share that each spouse receives is generally equal. However, the court may adjust this formula, considering it fair to give the husband or wife a larger proportion. In this case, the court has the right to appoint to the spouse who received the smaller share monetary compensation in the amount commensurate with the amount of ownership of property that was transferred in favor of another owner. Similar rules apply if a share in a common ownership right after a divorce is determined.
Regarding disposition of property after termination of marriage An interesting nuance can be noted. The fact is that if, for example, people got divorced in 2011, and the apartment has not yet been sold or divided, it retains the common joint property. If, for example, a co-owner who is a spouse wants to somehow manage the real estate, he will have to obtain the consent of the citizen who was his wife.
Property and prenuptial agreement
Consider another scenario provided for by the Family Code of the Russian Federation in which spouses can determine the model of common ownership of property. It is a question of drawing up a prenuptial agreement, under which the relevant conditions can be spelled out.
This document may establish that, for example, common ownership of an apartment will not be joint, but shared. At the same time, the conditions of the marriage contract can be specified both in relation to the property that the spouses already have, and in terms of the future acquisition of this or that property by the husband and wife during the period of cohabitation. An interesting fact is that the document in question can be drawn up and signed by the spouses not only before the marriage is registered, but also during the period when the corresponding marital status is relevant.
The practice of using real estate in marriage: sale
How can the right of common joint ownership be realized by spouses in practice? Take a scenario when it comes to selling a share in an apartment one of the married citizens. Suppose that a husband and wife were able to agree on what share in the ownership of real estate will belong to everyone. The husband then decided that he would sell the existing asset, for example, by contacting a realtor.
The peculiarity of the Russian legislation regulating the right to common property is that it involves establishing priority in the order of buyers of a share in joint ownership of property in favor of one of the current co-owners. That is, if the husband, as in our scenario, wanted to sell part of the apartment, then the first person who will have the preemptive right to buy this share in real estate is his wife. Only if the spouse refuses to take advantage of this preference, does the husband have the right to go to a realtor. Under this scheme, one owner of a share is obliged to warn the other that he is going to make such a deal, and in writing.
An interesting fact is that if the co-owner of the apartment is not only his wife, then everyone who is involved in joint ownership of the apartment can take advantage of the preemptive right to buy a share that the husband sells. In turn, the spouse himself must choose to whom to sell real estate.Other owners may decide to purchase a share in the apartment offered by their husband within 30 days. If they do not take advantage of this preference, the spouse may sell the share in real estate to third parties.
Co-Ownership Practices: Tax Deduction
Among the significant circumstances from the point of view of the ownership of the apartment may be the desire of the spouses to take advantage of the property tax deduction, the basis for which is the fact of acquiring real estate. As you know, the homeowner, who bought it at his own expense, has the right to return 13% of the costs (but not more than 260 thousand rubles). In this sense, the mechanisms for using this preference in case of ownership of an apartment in the shared ownership and joint regimes may differ. What is this expressed in?
If the spouses own the apartment in shares, then each of them will be able to receive a deduction volume, which is proportional to the cost of the corresponding part of the apartment, which is registered in the property. That is, for example, if real estate is worth 3.5 million rubles, then with an equal distribution of shares, each spouse will own property worth 1 million 750 thousand rubles. Accordingly, to receive the maximum guaranteed deduction - 260 thousand rubles. - it will not work, for this the value of real estate should be 2 million rubles.
Therefore, in the aspect of filing a tax deduction, joint ownership may prove to be a more profitable option. No shares in it are defined. Therefore, the spouse can go to the tax office and apply for a deduction at the full price of the apartment. True, in this case it will be necessary to draw up an additional document from the other spouse confirming the right to use the deduction for the apartment for yourself to submit to the Federal Tax Service. It can also be noted that the husband and wife can “divide” the apartment for deduction in any proportion. That is, for example, one spouse can “give” 3 million rubles to another for a tax deduction, and leave 500 thousand rubles to himself.
Such an opportunity is useful if, for example, a wife who bought an apartment goes on maternity leave. Her income is becoming insufficient to receive tangible deduction payments. In this case, she “assigns” the right to her husband to receive appropriate compensation from the state for her apartment. An important nuance - if one of the spouses completely “transferred” their share in the apartment for deduction to another, then he himself does not lose the right to apply for a similar tax preference subsequently. Of course, only if he acquires new real estate, since the one that is jointly owned, he “transferred” in the law. Or, as an option, he will be “given” the right to receive a deduction on it in the same way as he did in the previous apartment.
Joint ownership in peasant farming
Another scenario stipulated by law for the common joint ownership of property can be realized if the owners conduct peasant farming together. This type of association is possible due to family ties or because of stable partnerships in the framework of farming activities.
Property that belongs to the peasant economy, therefore, belongs to its participants on the right of common ownership, unless otherwise specified in legal acts. Thus, common ownership of land, houses, plantings, inventory, equipment, transport, livestock, poultry is established. In general, everything related to the agricultural business. It is assumed that each member of the association will have equal opportunities to receive fruits and other products of farming in the process of using shared resources.
With regard to the disposal of property shared by farmers, the key rule here is the equal rights of all members of the association in terms of the use of resources.Moreover, the private property management model can be determined at the level of agreements between the participants of the association - this is stated in the provisions of Article 4 of the Federal Law “On Peasant Economy”.
It should be noted that the main subject of transactions within which the use of farm resources is supposed to be considered by law is the head of the association. However, he must carry out his actions exclusively in the collective interest. Responsibility for the legal consequences of the agreements concluded by the head of the farm lies with the unification in solidarity.
Section and allocation of property in farmer associations
How is separation from common ownership in farmers' associations carried out? The main source of law here is the law noted above. In the 9th article of the Federal Law "On Peasant Farm" it is said that when a member leaves the association, one of the participants is not subject to division, in particular, a land plot, and also means of production. However, the farmer has the right to rely on compensation commensurate with his estimated shares. The term for its payment is determined by mutual agreement of the participants in the economy. There is a possibility of appointing it in court. An important nuance: even if a person has left the farm, then for another two years, according to the law, he should bear subsidiary responsibility commensurate with the size of the previous shares for the obligations of the association.
As for the division of the general farming business, it usually assumes that several independent enterprises will be created on the basis of a single farm. At the same time, common ownership is divided so that each farmer can subsequently save all the production processes established in the association. That is, each owner of a new independent economy should receive his tractor, his own territory for sowing, equipment and other resources.
