According to the Constitution of the Russian Federation, every citizen, including persons under the age of majority, from birth has the right to housing, as well as the right to own property or part of it.
The issue of allocating a share in an apartment to children became especially relevant after the start of the Maternity Capital program. Most owners of matkapital use it to buy a home or pay mortgage obligations. And in accordance with the law, in the property acquired, including at the expense of the family certificate, the allocation of a share in an apartment to underage children is mandatory, exactly like their parents.
Types of property
The home in which the minor children of the spouses are registered and reside may be:
- jointly owned by all family members;
- in common shared ownership.
Co-ownership
A minor child, on an equal basis with adult family members, has the right to own property, or part of it, owned by parents, and also to use such property without the right to dispose. The child is entitled to independently dispose of the share due only upon reaching the age of majority.
Co-ownership of housing involves the mandatory participation of all owners in transactions of sale, lease and other operations associated with the disposal of joint property. For example, the sale of such a dwelling is possible only with the general permission of all owners. In the context of marital relations, joint ownership of spouses by housing implies the equal right of each of them to half of the property, regardless of whose name this property is registered in.
Share ownership
Shared ownership of housing provides an opportunity for each co-owner to use and dispose of a part of his property at his discretion without the obligatory consent of other owners. Thus, the shared owner has the right to sell, bequeath, lease his share in the common property. Moreover, in case of alienation by the shared owner of their part of the housing, the co-owners shall have the right to preemptively purchase its share.
When is this procedure necessary?
When purchasing a new property, the parent is not always obliged to allocate a share of the property in the apartment to his children. The law provides for certain situations when this procedure is required. For example, the allocation of a share in an apartment is carried out if the dwelling was acquired at the expense of maternity capital or protection of the legal rights of a minor is required. In the second case, situations are taken into account when new housing is acquired after the sale of property in which the child had a share.
The fulfillment of this obligation is strictly monitored by the state, so before changing the place of residence of minor children, parents will have to obtain the appropriate permission of the Guardianship and Guardianship Authority. The main condition for the allocation of a share in an apartment to a minor is as follows: this part should be no less than that which belonged to him before the acquisition of new housing. Otherwise, the transaction may be invalidated.
Required documents
In the absence of disputes between spouses, the allocation of a share intended for a child is not particularly difficult.The whole procedure is carried out directly by the authorities of the Federal Register of Regions when providing the following documents:
- an application for the allocation of a share in the apartment of the established form;
- receipt of state duty for registration actions;
- certificate of family composition;
- certificate of residence;
- housing purchase agreement;
- title document.
If the spouse, who paid for the purchase of an apartment or a house, refuses to allocate a share to a minor child, the issue can be resolved in court proceedings at the request of the other spouse. In this case, the registration of real estate will be carried out on the basis of a court decision.
Allocation of a child’s share in mortgage property
Housing purchased in a mortgage, becomes the property of the borrower only after the full fulfillment of obligations under the loan agreement. The borrower may be one of the parents of the child, or both spouses, one of whom is appointed by the main borrower, and the other by the co-borrower.
The subsequent distribution is formalized by the credit institution by drawing up a separate agreement on the allocation of shares in the apartment. The document indicates the conditions on the basis of which the housing becomes the property of the borrower after repayment of the loan. In particular, the condition securing the right of minor children of spouses to acquire an appropriate share. Under the law, a minor is not considered as a co-borrower on a mortgage loan. He only has the right to receive a part in the property of his parents.
Allocation of a share to a minor is possible only after full repayment of the loan and removal of encumbrance from the property.
Instruction: how to allocate shares in an apartment purchased from maternity capital
Housing purchased at the expense of the maternity certificate is issued with the direct participation of the Pension Fund, where the mother of the child must apply with the appropriate application.
In turn, the state body, before transferring funds, will request a certified document - an obligation from the seller of real estate. Such a document is a guarantee that the acquired property will pass into the possession of the buyer within the prescribed period. After repayment of the debt at the expense of maternity capital, new housing becomes the property of the mother, who in turn is obliged to allocate shares to her children.
If the housing before the repayment of the mortgage debt by means of maternity capital was pledged by the bank, before allocating the appropriate shares for children, the burden is required. The withdrawal procedure is carried out by the authorities of Rosreestr at the request of both parties to the loan agreement.
A guarantee of the allocation of a child’s share in the acquired property is a notarized obligation, which is provided to the FIU with the application.
The document contains the obligation of the mother that within six months after the repayment of the debt and the transfer of real estate into her possession, she must register the ownership of the acquired object in accordance with the terms of the obligation. This condition is the mandatory allocation of shares in the apartment for maternity capital for children and spouses. Parts of each family member are determined by agreement.
Further, the allocation of shares in the apartment according to the maternal certificate for children occurs in the general manner at the request of the owner of the property and under the control of state bodies. If the procedure is not carried out for any reason, the transaction may be canceled in court.
Obligation to allocate shares to step-children
Registration of the obligation of the mother to allocate shares to her children and spouse has some nuances relating to step-children.In particular, the person on whose behalf the obligation is drawn up is not required to indicate in it children with whom he has not established a legal relationship.
For example, if a child of one of them born from a previous marriage lives and is brought up with spouses. In such cases, the parent is not required to allocate a share to the child of his spouse, with the exception of children who have been officially adopted by that parent.
Allocate a share to their minor children born in a previous marriage and supported by one of the spouses, is entitled only to the direct owner of the house, that is, the spouse who purchased the house on his own funds, either individually fulfilled obligations under the loan agreement, or was the owner of the premises before making a new marriage.
General procedure for transferring a share due to a child
As documents on the basis of which state registration of the minor’s right to a share in the common property is carried out, the following shall be provided:
- Gift agreement.
- Agreement on the determination of shares.
Both the one and the other document are executed in writing. Notarization is optional, but preferable, since such documents entail the transfer of ownership of the premises. And the capacity of a citizen, on behalf of whom the transfer of rights is carried out, can be established only by an authorized person (notary).
Allocation of a share to a child after divorce of spouses
According to the current norms of family law, all property acquired by spouses during the period of official marriage is considered their joint property, and after the dissolution of the marriage is divided in equal shares.
A spouse whose children remain after the divorce is entitled to demand a large share in the joint property. You can determine the share of each child in joint property on the basis of an oral agreement, a written agreement, or in a court proceeding.
Maternal capital is not subject to division and, as a rule, after a divorce remains at the disposal of the mother. Only in exceptional cases is it possible to transfer the right to maternity capital to the father, for example, as a result of the death of the mother of children, deprivation of parental rights, the mother committing unlawful acts against her minor children, recognition of the mother as missing, or termination of the adoption process.
In any case, after the divorce, the parent's obligation to allocate a share in the apartment for minor children must be fulfilled.
The spouse (father of children), who obtained the right of ownership as a result of the fulfillment of the obligation to purchase housing on the means of maternity capital, becomes the full owner of its part in the property. This does not prevent him from transferring the received part of the housing to his children after a divorce. You can make a transfer on the basis of a gift agreement with the mandatory registration of rights in Rosreestr.
Allocation of a share in kind in an apartment per child
This procedure involves assigning a minor a separate room within the total living space. At the same time, the owner of the allocated share should have unhindered access to the premises designated for him with the possibility of using common areas (kitchen, bathroom, hallway). Allocation of a share in kind in an apartment is made on the basis of mutual agreement of all homeowners, or in a judicial proceeding if other owners have claims.
It is possible to allocate part of the property in kind if it is sufficient for the allocation of living space.
Responsibility for depriving a child of a share in the common property
To register ownership of the acquired property without the participation of minor children is not so simple.A number of government agencies closely monitor the fulfillment of parental obligations. However, if a parent intentionally deprives his children of the right to housing purchased, any interested person, including public authorities (Guardianship, Pension Fund), has the right to report a violation of the rights of a minor.
For example, if a mother succeeded in registering the maternity capital acquired with funds, without allocating a share in the apartment to the children, and selling it solely and subsequently, such a transaction could be invalidated and canceled in court.
The result of the recognition of the transaction will be: the return of funds to the buyer, and the living space to the mother, followed by the parent's obligation to register the property in accordance with the previously drawn up obligation.
There is no separate punishment for failure to fulfill the obligation to allocate shares to underage children. A parent can be prosecuted only if fraud is established. Certain facts of violation of the rights of minors are revealed after planned inspections of the prosecution authorities, Guardianship and trusteeship, the Pension Fund of the Russian Federation.