Change of ownership of real estate always raises many questions among citizens. And what can we say about the situation when there is a sale of a share in the apartment! There is a lot of incomprehensible to people. In our article we want to understand how to draw up documents correctly, what is shared ownership in general, and how to deal with paying taxes.
What is shared ownership?
Let's first understand why the situation arises. shared ownership. In fact, there can be many reasons:
- Housing has been privatized to absolutely all registered family members at the time of paperwork.
- The apartment, which is in common ownership, is divided after the divorce of the spouses.
- Real estate is inherited by several descendants.
It should be noted that an ordinary apartment, which is in shared ownership, is physically impossible to share. To do this, as they say, “in kind”, it is necessary that this housing has separate entrances and connections to all communications. It is impossible to put it into practice. Thus, sometimes only private houses can be divided. In all other cases, ideal shares are obtained.
What is the ideal share?
First of all, you need to understand that the ideal share is not your part of the housing, but only a share in the right to it. In fact, the property right itself is subject to division, not the apartment. As they say, to feel this part in reality is not possible. One of several owners cannot be considered the owner of the housing, because he owns only a share, and this, in fact, is only a form of law, but not the apartment itself.
It turns out that each of the owners has the opportunity to use housing, but at the same time should not violate the rights of others. Of course, in practice it is not at all easy to implement. It comes to the fact that the regime for using the living room, bathroom, toilet or kitchen is established, the rooms are divided between the tenants.
However, if one of the co-owners of the court allocated a room for use with an area of fifteen meters, and the other, for example, twelve, then they will pay utility bills in accordance with what shares they own. If each of them has half, then he will receive bills for half of the apartment, and not for the occupied area.
Selling a share in an apartment is the most difficult. This raises a lot of questions and problems. So, it is necessary to understand this in more detail.
Sale of a share in the apartment by the owner
This situation is certainly not very good. Let’s explain why. The fact is that the owner (or rather, one of them) can sell not the housing itself, but tenure them. Agree that this will certainly affect both the price and the duration of the process. There are probably not many people who want to buy property in addition with strangers in the neighborhood. Although a person, in fact, has the right to sell a share in an apartment, it is not so simple to realize it.
But this is not the only difficulty in such situations. The fact is that owners of shares have a pre-emptive right to purchase this housing. How it works? First of all, you need to offer to purchase real estate to another co-owner. If he agrees, then the share of the apartment is sold to the relative (as a rule, distant and close relatives are the co-owners), and if he refuses and does not acquire the realized part within a month, then it can be sold to completely strangers. There is one but. And quite substantial.The contract of sale of an apartment share must have the same conditions for both the owner of the part and an outsider (the price must be the same). This will help eliminate the possibility of fraud.
If this condition is violated, the co-owners may file a lawsuit with the court regarding the transfer of the sale right to themselves. Such a statement can be made within three months, starting from the moment that it became known about violations of preemptive rights. Selling a share in an apartment to another owner is accompanied by many problems and nuances that are best known in advance. To avoid unnecessary misses in the future.
Registration of preemptive rights
Using the advice of lawyers who are familiar with such situations, you need to correctly draw up all the documents so that there are no unpleasant incidents. For example, in order to comply with the pre-emptive right, it is better to draw up a proposal to acquire a share in writing by mail with a letter of notification or registered. And you can also personally hand it in, but at the same time ask them to sign on copies indicating the time and date of receipt. There should be a confirmation of receipt of securities. Thus, you are safe from possible dishonest actions of other owners. After all, they may ignore your offer, and later declare that you did not inform them.
By the way, in a similar way the pre-emptive right is realized during the exchange.
How can priority rights be circumvented?
If you have a share of the property in the apartment, selling, as you know, will not be easy, since it is not always possible to negotiate with the co-owners in a good way. What to do in this case? After all, there is no other way but to get rid of such real estate. Here the advice of lawyers will come to the rescue. You may be offered to cheat and circumvent the preemptive right. This option is not entirely good and involves a certain risk. The fact is that the buyer may not be completely honest, which means that you, bypassing the preemptive right by an imaginary agreement, may not receive the money by agreement.
Is a gift agreement possible?
Of course, the sale of a share in an apartment is possible through donation. And in this case, the preemptive right does not work. After all, you cannot forbid giving anything. But here there are some nuances and risks.
The fact of giving to the buyer may be invalidated as a concealing contract of sale. The owner, however, may demand that the rights to the transaction be transferred to him. So, the buyer will lose the acquisition.
The seller may suffer in another way. If the buyer honestly does not pay, then he will not be able to recover money from him legally.
Overpriced in the contract
In order to force the co-owners not to purchase the sold part of the property, you can offer them a contract of sale of a share of the apartment at a very high price. Having received the refusal or not having received it, the seller can issue a receipt for the same amount as specified in the contract, but agree with the buyer that he will pay a lower amount (real).
What pitfalls can be with such a development of the situation? As a result, the transaction tax will be overstated, since the declaration will reflect the amount indicated on the receipt.
In general, there are no ideal options. In each case, you just need to correlate the amount of tax and share prices, as well as find out the conditions for the occurrence of obligations to pay personal income tax (there are times when the sale of real estate is not taxed).
Drawing up a loan agreement
You can draw up a loan agreement, which will indicate the amount equal to the price of the redeemed share of housing. At the same time, an agreement is made under which the loan is secured by the right to share property. It is such a collateral agreement that is called a mortgage. This is not a loan, as many believe. Mortgage must pass state registration. The state duty will be one thousand rubles.
Further, the borrower intentionally misses the terms of the refund. In turn, the buyer of the part of the apartment, which in this case acts as a lender, is enforcing a share of the property. In order not to get involved in litigation, sign lease agreement in which both parties agree that instead of repaying the loan amount, the right to a share of the property is transferred.
But in this case, it is not so simple. All the same, there is a risk of canceling the contract at the initiative of the remaining homeowners if they go to court. If the claim is satisfied, then the buyer will need to return the share, and the seller will still owe the money under a fictitious loan agreement, since the compensation will be invalidated.
Which equity transactions are illegal?
The sale of a share in an apartment is not possible in case of assignment (cession). Such transactions are prohibited.
Assignment can be used in the alienation of shares of one founder of an LLC, but selling a share in an apartment in this way is impossible.
Does preemptive law always work?
There is one case when a share in an apartment can be sold without preemptive rights. This is a public sale. Only creditors do this with a share of real estate, if there are no other ways and funds of the debtor are not enough to cover debts.
But not every share can be recovered as debt (after all, you cannot take the only housing). There are only two options when they can take a share:
- A share in the law became the guarantee of a mortgage (in this case even the only housing is exacted).
- If the debtor does not live in an apartment in which he has a share and is registered at a different address, or he also owns another housing.
Sale of the whole apartment with shared ownership
If the apartment is small, plus there are several co-owners who have no desire to live together on the same territory, then the best solution in this situation is to sell the whole apartment. Any lawyer will offer you such a solution to the problem.
If all parties agree, then no difficulties will arise. Although you may still need legal support to properly complete the transaction. Several options are possible:
- Conclude a contract of sale, but all owners of shares will act as a seller.
- Issue as many agreements as owners. As a result, the buyer has so many share purchase and sale agreements that he becomes the sole owner of the apartment.
The first option is preferable when the co-owners live nearby. It is more interesting in the sense of paying the state duty for registering property rights.
Although, if you have legal support, they will tell you a more profitable option in each case.
The second option can be convenient in cases where the co-owners categorically do not want and cannot communicate with each other, or live far away, or do not want to provide power of attorney to sign the contract one to another. There may be many nuances. The right decision will help you make a lawyer.
However, in the second case, the buyer will have to spend money on paying a state duty for each share of one thousand rubles.
How to resolve the situation if one of the parties is against the sale?
This situation occurs most often. It is due to the fact that several owners have the intention to sell an apartment that is completely unnecessary to them. And then divide the money. And some participants, for example, are against this decision for some reason. Do not forget that much depends on the size of the shares.
If the opponent of the sale has a small part, then you can forcibly buy it from him. This is done in court. A suit is being filed. Arguing your claims with a small share of the co-owner, you can petition for coercion to transfer its share to other co-owners, of course, for monetary compensation.
Of course, if a person lives on this living space, then no one has the right to force him to sell his part, because the basis is only the small size of his part.
What is the size of taxes?
Funds received from the sale of property or interest are determined as income. So, it is taxed by personal income tax. Its size is thirteen percent of the contract amount.
But there are exceptions when you do not need to pay tax. For example, in the case when the share has been in the ownership of a person for more than three years. The reference date is the moment of state registration by a citizen of ownership rights to his share.
In other cases, when personal income tax still has to be paid, the state provides a tax deduction. This is the amount by which the price of the apartment or its share should be reduced when calculating the amount of tax.
But the tax deduction for the sale of the right to share has its own nuances.
Tax deduction
The maximum deduction amount of one million rubles for a single sale is established. An apartment can become such an object if it is sold as a whole. Or it may be a share, if the agreement is drawn up for each part separately.
It turns out that when selling the entire apartment, the maximum deduction is calculated in proportion to the shares of the owners. But if each part is sold separately, then each owner has the right to receive a deduction in the amount of one million rubles.
If you sold a share in an apartment that you owned for less than three years, then you need to fill out and submit a declaration, which will indicate the amount of income received from the transaction. There you will also find a tax deduction column. You will pay tax from a lower amount than stated in the contract of sale.
Accordingly, if the income received by a citizen is one million rubles, then tax obligations will not arise, because a tax deduction will pay off this amount. A person will only file a declaration, where he will indicate everything in detail.
Documents for the sale of shares in the apartment:
- Passport of the seller or all co-owners of the property.
- If one of the owners is a minor, then he will need his birth certificate and the permission of the Board of Trustees (it is given after writing a statement to the guardianship authorities with the details of the apartment you want to buy instead of the old one). Still need the consent of the child's parents. But, if they are divorced, then notary services will be needed to certify documents.
- Certificate of ownership of housing, documents on privatization, contract of sale (if the apartment was bought).
- Certificate from the Unified State Register.
- Technical passport from BTI. Cadastral passport for real estate.
- Certificate of alienation from the BTI, which is valid only for a month.
- A document on the composition of the family from the managing organization.
- Written consent of all participants to the transaction. Here again, notary services will be needed to certify the documents.
It should be remembered that the transaction, and therefore the agreement itself, will be invalid until they are registered by the state. Only certification of documents gives them legal force. And only in this case the transaction is legal and correctly executed.
Instead of an afterword
As you can see, selling the right to share an apartment is fraught with knowledge of a huge number of nuances. We hope that after reading the article you will have no questions regarding this topic.
