Most often, determining the procedure for using an apartment is required when spouses remain living in the apartment after a divorce. Or when one apartment is inherited by several people who do not get along well with each other.

From this article you will learn how to justify your claims, why the court may refuse to satisfy the claim, and what the court takes into account when determining the procedure for using an apartment in shared ownership.

It is important to know: housing law is one of the most complex in Russia. Although the Housing Code is a relatively small document, in practice, every legal action in the field of housing law is accompanied by difficulties and questions. We remind you that you can get legal advice on determining the procedure for using an apartment in shared ownership from Lawyer-Expert24 - the consultation is free and does not oblige you to anything.

The legal side of the issue of determining the procedure for using an apartment

The Civil Code of the Russian Federation approves the following points on this issue:

• the owner of a share of the apartment has the right to go to court so that the court determines the procedure for using the apartment (parts 1 and 2 of Article 247 of the Civil Code of the Russian Federation);
• if the owners of the apartment do not agree on who uses which room, you can go to court with this issue (Part 3 of Article 252 of the Civil Code of the Russian Federation);
• even if it is impossible to allocate a share from the common property (a one-room apartment, and there are two owners, for example), then the owner of the share can still go to court with a claim to determine the procedure for using the apartment (clause 37 of the Resolution of the Plenum of the Armed Forces of the Russian Federation “On some issues related to application of Part 1 of the Civil Code of the Russian Federation").

What does the court consider when resolving a case?

Neither the Civil Code nor the Housing Code has clear instructions on how to resolve such cases. Of course, over the years, judicial practice has developed, and the Resolution of the Plenum of the RF Armed Forces brings some clarity. But still, when determining the procedure for using an apartment in shared ownership, judges often proceed from their own understanding of the laws, which each judge may have his own.

So, the court takes into account:

• whether the actual procedure for using the apartment has developed (for example, the ex-wife lives in one room, the ex-husband in another);
• how much each of the parties in the case really needs the disputed residential premises.

Case study: The couple divorced, the husband remained to live in the apartment, and soon he had another family. But the ex-wife tried to get one room for use, arguing that it was due to the needs of the child. At the same time, it turned out in court that both she and the child have a place to live. The court has come to to in I conclude that the woman simply wants to ruin her ex-husband’s life by sometimes coming to the apartment. The court rejected the claim.

• is it possible that the parties will live in an apartment or they can’t stand each other so much that there is no talk of any kind of living together;
• Do the parties have other housing, how important is this share in the apartment to them? Maybe some people have nothing else, while others have another apartment they own.

It is important to know: it is impossible to foresee everything. Each case is unique, including yours. This article describes general cases of determining the procedure for using an apartment in shared ownership. So that we can say something more specific, take advantage of the right to a free consultation - this does not oblige you to anything, but at the same time you will know the prospects for the development of the situation and what you should do next.

Judicial practice: why do courts refuse to satisfy a claim?

We have already discussed one case of failure above. Let us now look at other grounds for refusing to determine the procedure for using an apartment in shared ownership.

• The layout of the apartment does not allow the rooms to be divided according to shares: three-room apartment (rooms 18 m2, 17 m2 and 15 m2) in shared ownership of the ex-husband (½ apartment) and wife (½ apartment). Total area - 50 m2. That is, each spouse is entitled to 25 m2. But the area of ​​the rooms is such that it is impossible to divide these rooms so that the spouses get 25 m2 each. The area of ​​the two smaller rooms is 32 m2 in total, while the third room is 18 m2. In such a situation, the court will most likely refuse to satisfy the claim.
• There are many owners, but the apartment is small: for example, 3 people inherited a one-room apartment. In this situation, it is unrealistic to allocate premises for each owner to use. Judicial practice throughout the country comes down to this. And even if there are 2 owners, and not 3, then it will not be possible to determine the order of use of the apartment.
• The plaintiff did not prove that he was being interfered with in using the apartment: going to court is always associated with conflict. When the applicant goes to court with a claim to determine the order of use of the apartment, he must prove that other residents are preventing him from using his share in the apartment. If he has not proven this, then it turns out that the court does not need to determine the procedure for using the apartment.

This is also evidenced by Part 1 of Article 247 of the Civil Code of the Russian Federation, which states that the court intervenes in the affairs of apartment residents only if they were unable to reach an agreement among themselves.

How to write a statement of claim to determine the procedure for using an apartment

Such a claim is submitted to a magistrate (clause 7 of part 1 of article 23 of the Code of Civil Procedure of the Russian Federation). The state duty is 300 rubles (Article 333.19 of the Tax Code of the Russian Federation).

The claim must indicate:

• the name of the court district where it is filed;
• Full names of the parties (the plaintiff is the one who files the claim; the defendants will be other residents of the apartment who interfere with the use of the apartment);
• the reasons why the claim is being filed;
• in addition, you need to describe the housing itself, you should indicate: its address, area, number of rooms, access to them, how the residents now use the rooms, how they prevent the plaintiff from using its area.
• as well as a request to the judge: to determine the procedure for using residential premises on your terms. Your request must be supported by references to regulatory legal acts (Articles 247, 252 of the Civil Code of the Russian Federation, Article 30 of the Housing Code of the Russian Federation, others).

That's not all. The claim for determining the procedure for using the apartment must be accompanied by documents that confirm the veracity of your words. Most likely it will be:

• documents confirming your ownership (certificate of ownership, extract from the Unified State Register of Real Estate, purchase and sale agreement, possibly other documents);
• certificate from the BTI;
• information about family members;
• receipt of payment of state duty.

It is important to know: a correctly drawn up and reasoned claim to determine the procedure for using an apartment in shared ownership is half the case won. You can find samples on the Internet, but only an experienced and competent lawyer can write a claim so that there are no “loopholes” for opponents. At a free consultation, you can ask questions about what is best to write in the claim.

Why you will need an experienced lawyer

In some cases on determining the procedure for using an apartment in shared ownership, judicial practice is unambiguous and understandable. But basically it is contradictory, and much depends on the evidence base. Our lawyers will analyze your situation and tell you whether there are many chances for success.

You will need evidence that you are not allowed to use part of the apartment. The lawyer will tell you how to collect this evidence and present it to the court - this is extremely important in such cases.

You will feel calmer and more confident when an experienced lawyer is on your side, who has already won cases like yours in court more than once. In addition, the lawyer can completely take over the entire case, and you won’t even need to come to court.

Services of our lawyers

• free legal advice on determining the procedure for using an apartment in shared ownership;
• studying the case materials, elaborating the legal position, determining the judicial perspective;
• collecting evidence, requesting documents necessary for the case;
• writing a statement of claim and filing it in court;

Before solving the problem of determining the procedure for using an apartment, it is better to get advice from an experienced lawyer, for whom your case is far from the first in his practice. Consultations are free and do not obligate you to anything. You will be able to ask the questions that interest you and receive clear and accurate answers taking into account judicial practice.

To schedule a consultation, just call or leave a message in the form below. After the consultation, you will be able to decide whether you need to use our paid services or whether you will decide the issue yourself. In any case, the consultation does not oblige you to anything and at the same time saves you a lot of time.

In legal practice, disputes very often arise related to determining the procedure for using residential premises. Historically, the most valuable property owned by the vast majority of citizens is residential premises. Therefore, any owner of residential premises is very sensitive to the fact that his rights to residential premises are challenged by anyone. In the event that ownership of residential premises belongs to several persons, the question arises about the joint use of this residential premises by all co-owners. This is where disputes usually arise. Indeed, it very rarely happens that the rooms in a residential area exactly correspond to the shares of the co-owners. Each co-owner wants to get a larger room and preferably with a balcony.

The law allows the owners of residential premises to enter into an agreement to determine the procedure for using the residential premises, and if such an agreement is unattainable, go to court to establish the procedure for using the residential premises.

Claims to determine the procedure for using residential premises are in most cases satisfied by the courts. However, in some cases, courts decide to reject such claims.

Judicial practice, when resolving disputes about determining the procedure for using property that is in shared ownership, proceeds from the actually established procedure for using the property, which may not exactly correspond to the shares in the right of common ownership, the need of each of the co-owners for this property and the real possibility of joint use.

The purpose of this article is to provide a legal analysis of the reasons for the courts’ refusal to establish the procedure for using residential premises.

Plenum of the Supreme Court of the Russian Federation No. 6, Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 of July 1, 1996 “On some issues related to the application of part one of the Civil Code of the Russian Federation” indicated in its Resolution that the impossibility of dividing property in shared ownership, in kind or by allotment a share from it, including in the case specified in part two of paragraph 4 of Article 252 of the Code, does not exclude the right of a participant in common shared ownership to make a demand to determine the procedure for using this property, if this procedure is not established by agreement of the parties.

In resolving such a requirement, the court takes into account the actual procedure for using the property, which may not exactly correspond to the shares in the right of common ownership, the need of each of the co-owners for this property and the real possibility of joint use.

This Resolution made it possible for owners of residential premises to raise the issue of the procedure for using residential premises before the courts if the co-owners cannot resolve this issue voluntarily.

The reasons for refusal to satisfy claims to determine the procedure for using residential premises can be classified into the following main groups:

1. Inconsistency between the requirements for the area of ​​the room (rooms) and the size of the owner’s share;
2. The plaintiff does not need housing;
3. Inability to use residential premises together with other co-owners.
4. Other reasons.

Inconsistency between the requirements for the area of ​​the room (rooms) and the size of the owner’s share.

The court found that the plaintiff has not lived in the disputed residential premises for a long time, since the defendant, through her actions, namely by renting out the apartment to third parties, prevents him from living in the apartment; the defendant is currently making repairs in the apartment. Thus, the procedure for using the disputed apartment between the parties did not work out.

Considering the living area of ​​the disputed apartment is<...>does the plaintiff N. belong to? shares in the right of common shared ownership of the apartment, the defendant - ? share, the apartment does not have a room that would correspond in area to the plaintiff’s share in the property right, and the use of which he could exercise without infringing on the defendant’s rights, in connection with which, the judicial panel comes to the conclusion that the defendant’s rights have been violated if the plaintiff is provided with use of room size<...>exceeding by<...>its share of the living space.

In such circumstances, the court decision regarding the determination of the procedure for use<адрес>subject to cancellation as adopted on the basis of incorrect application of substantive law.

(Determination of the St. Petersburg City Court No. 33-9777/2013)

In resolving the dispute, the court of first instance, guided by the provisions of Article 247 of the Civil Code of the Russian Federation on the ownership and use of property in shared ownership, proceeded from the fact that the number of separate living rooms in the disputed residential premises does not correspond to the proportionality of the shares in the right of common shared ownership of each of the participants , the procedure for using the disputed residential premises cannot be considered established; determining the procedure with a preference for one or the other party will entail a violation of the rights of each of the co-owners, and therefore, I came to the conclusion that determining the procedure for using the residential premises is unacceptable.

This conclusion of the court is correct, it was motivated in the decision by the court and was not refuted on the merits in the appeal.

The mere fact of the presence of three isolated rooms in the disputed residential premises, corresponding to the number of apartment owners, does not indicate the possibility of determining the procedure for using the residential premises.

By virtue of paragraph 1 of Art. 209 of the Civil Code of the Russian Federation, the owner has the rights to own, use and dispose of his property.

In accordance with paragraph 1 of Art. 247 of the Civil Code of the Russian Federation, ownership and use of property in shared ownership is carried out by agreement of all its participants, and if agreement is not reached, in the manner established by the court.

As explained in paragraph 37 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 6/8 dated July 1, 1996 “On some issues related to the application of the Civil Code of the Russian Federation,” a participant in common shared ownership has the right to make a claim to determine the procedure for use common property, unless this procedure is established by agreement of the parties. In resolving such a requirement, the court takes into account the actual procedure for using the property, which may not exactly correspond to the shares in the right of common ownership, the need of each of the co-owners for this property and the real possibility of joint use.

Thus, the legally significant circumstances in resolving this dispute are the actual established procedure for the use of property (which may not exactly correspond to the shares in the right of common ownership), the need of each of the co-owners for this property and

So, the disputed apartment has a total area... sq. m. m, including the loggia, living space... sq. m. m and consists of three isolated rooms with an area of... sq. m. m, ... sq. m and... sq. m (ld 10).

Thus, the parties, being the owners... of the disputed apartment, have the right to demand the allocation of residential premises measuring... sq. m. for their use. m (... sq. m/3). There is no room in the said apartment corresponding to the amount of living space shared by each of the co-owners.

At the same time, as follows from the stated requirements, a room with an area of... sq. m. m are asked to assign A.D. for their use. and G.D., Z. asks to assign a room for his use with an area of ​​... sq. m. m.

Meanwhile, since the actual procedure for using the disputed apartment has not developed between the parties, the options proposed by the parties for determining the procedure for using the living space lead to restrictions on the right to use the apartment of other co-owners.

Under such circumstances, based on the fact that the parties have not established a procedure for using the disputed residential premises, the allocation for use of A.D. or G.D. rooms with a loggia, living space... sq. m. m, per... sq. m exceeding their share in the right of shared ownership of the living space, will significantly violate the rights of each of them, as well as the rights of Z.

Thus, the court of first instance came to the correct conclusion that determining the procedure for using residential premises in this case according to the options proposed by the parties is impossible, since the balance of rights and legitimate interests of the owners of residential premises will be violated.

The circumstances referred to by G.D. in the appeal, namely, the presence of two dependent minor children, one of whom is disabled, cannot serve as a basis for reversing the court decision, since the parties have equal shares in the ownership of real estate, therefore, have equal rights in possession and use by her.

(Determination of the Leningrad Regional Court dated June 11, 2013 N 33-2710/2013)

Satisfying the claims regarding the determination of the procedure for the use of residential premises between the owners according to the option proposed by the plaintiff, the court took into account the absence of an established procedure for the use of the apartment, the equal size of the shares of the co-owners, determined that the use of the apartment should be equal for each of the owners and divided the living room into two halves (left and right), transferring half of the room for the use of each of the co-owners and leaving the kitchen, bathroom, hallway, pantry and loggia as common areas for the joint use of the owners.

According to Art. 195 of the Code of Civil Procedure of the Russian Federation, a court decision must be legal and justified, that is, it must be made in strict compliance with the norms of procedural law and in full compliance with the norms of substantive law that are subject to application to a given legal relationship, when the facts that are significant for the case are confirmed by those examined by the court evidence that meets the requirements of the law on relevance and admissibility.

The panel of judges cannot agree with these conclusions of the court, since they are based on the incorrect application of substantive law, and were made with an incorrect determination of the circumstances relevant for the correct consideration of this dispute.

Based on the provisions of Art. 328 of the Code of Civil Procedure of the Russian Federation, the judicial panel considers it necessary to cancel the court decision regarding the determination of the procedure for using the disputed apartment and make a new decision in the canceled part to refuse to satisfy these requirements.

In accordance with Art. Art. 15 - 17 of the Housing Code of the Russian Federation, residential premises are intended for the residence of citizens, that is, isolated premises that are real estate and are suitable for permanent residence of citizens (meet established sanitary and technical rules and regulations, and other legal requirements). Residential premises include a residential building, part of a residential building, apartment, part of an apartment, and a room.

As can be seen from the certificate of the State Enterprise "Nizhtekhinventarizatsiya" and a copy of the floor plan (case sheets 11, 12) of the disputed apartment, it has one living room, the area<...>sq. meters.

At the same time, the owners of the apartment are two people - strangers, not relatives, of different genders, who are in hostile relationships.

This indicates that the properties of the apartment do not allow each of the owners to be allocated a part of the common property in the form of an isolated living space, the area of ​​which would correspond to their share in the apartment. At the same time, providing half of the entire room for the use of participants in shared ownership, in the form of left and right parts, as indicated by the court and as requested by the plaintiff, is not possible from the point of view of current legislation, since this will significantly infringe on the rights of the owners, thereby depriving them of the right to use the room in general and not receiving the use of another isolated room.

At the same time, dividing the room is also impossible, since this was not the subject of this claim (a claim for dividing the apartment in kind was not filed), and also due to the lack of confirmation of the possibility of dividing the apartment in this way without losing its consumer properties and purpose. Moreover, the decision in this part contradicts Art. 198 and art. 206 of the Code of Civil Procedure of the Russian Federation, since it cannot be actually executed. It is not clear from the decision how and by whom the room should be divided into two halves.

Taking into account the above, joint use of the apartment according to the option proposed by the plaintiff is not possible and is contrary to the law.

(Appeal ruling of the Nizhny Novgorod Regional Court dated 06/04/2013 in case No. 33-4732 The requirements for determining the procedure for using an apartment by dividing it into two equal parts were rejected, since the properties of the apartment do not allow each of the owners (parties) to be allocated a part of the common property in in the form of an isolated living space, the area of ​​which would correspond to their share in the apartment; demands for division of the apartment in kind were not made)

No need for housing

There are no grounds for transferring the cassation appeal for consideration at the court hearing of the cassation court, since no such violations were committed by the appellate court when considering this case.

The court found that on the basis of the donation agreement for 1/9 share of the apartment concluded on May 20, 2009, plaintiff V. became the owner of 1/9 share of the apartment located at the address:

Defendants K-ko are the owners of 8/9 shares of the apartment (4/9 shares each). Some people have been registered and have been living in the apartment since 1965. Plaintiff V. is not registered in the disputed apartment and does not live in it.

Checking the legality of the decision made by the court of first instance, the judicial panel for civil cases, having examined in the aggregate the evidence collected in the case, based on the provisions of the law, namely, Art. Art. clause 2 art. 288, 247 of the Civil Code of the Russian Federation, taking into account the legal position set out in paragraph 37 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6, the Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 of July 1, 1996 “On some issues related to the application of part one of the Civil Code of the Russian Federation Federation, came to the rightful conclusion that the legal significance for resolving the dispute in this case is the circumstances of the established procedure for using the property, the need of each of the co-owners for this property, as well as the real possibility of joint use of the disputed property.

The court found that the procedure for using the disputed apartment by the participants in shared ownership has not been determined; conflictual relations have developed between the parties; the plaintiff is permanently registered in the territory, the plaintiff’s wife is registered in the apartment located at the address:

Based on the established circumstances in this case, guided by the provisions of Art. 10 of the Civil Code of the Russian Federation, according to which actions of citizens carried out solely with the intention of causing harm to another person, as well as abuse of rights in other forms, are not allowed, I came to the reasonable conclusion that, by stating this demand for moving into a disputed residential premises with an area of ​​4 .75 sq. m, the plaintiff, as the owner of 1/9 share of the apartment, abuses the right granted to him by law; the plaintiff has not provided the court with evidence of need for the disputed residential premises; it is impossible for the plaintiff to actually live in a living room on an area corresponding to his share without infringing on the defendants’ housing rights.

(Determination of the Moscow City Court dated May 30, 2013 N 4g/3-5240/13)

Thus, in accordance with the above provisions of the law and explanations for their application, issues of legal significance for the case are, in particular, the actual established procedure for using property, the real need of each of the co-owners for this property and the possibility of joint use.

Meanwhile, from the case materials, explanations of the defendant and the plaintiff’s representative N.S.R. it follows that B.G. and B.R. each also owns by right of common shared ownership a three-room apartment located at (address) B.G. and her daughter N.S.R. are registered in the said apartment. and B.R., who does not live in the specified apartment, but lives in the disputed apartment at (address) together with his mother B.H.H.

Considering that the plaintiff, in addition to the disputed apartment, in which she had not previously lived, also owns a three-room apartment at (address), in which she is registered and in which the defendant does not live, therefore, the plaintiff does not have a real need for the disputed residential premises, in which it is permissible determination of the procedure for using the disputed apartment according to the option proposed by the plaintiff.

(Appeal ruling of the Orenburg Regional Court dated 05/07/2013 N 33-2101/2013 The claim to eliminate obstacles to the use of an apartment, move-in, determine the procedure for using the apartment and collect legal costs was rejected, since it was established that the plaintiff does not have a real need for the disputed residential premises for residence, and there are no legal grounds to satisfy the stated requirements.)

The court established and follows from the case materials that the disputed residential premises is a two-room apartment with a total area of ​​55.6 square meters. m, located at: 1.

The specified residential premises belong in equal shares to R. and K. based on the decision of the Gagarinsky District Court of Moscow dated November 15, 2011.

A conflicting relationship developed between K. and R.

Currently, R. permanently resides in another apartment at address: 2, where he owns a 3/4 share of the apartment, and K. - a 1/4 share.

K. lives in the disputed residential premises with two minor children.

The procedure for using the disputed residential premises has not been determined.

In refusing to satisfy the stated demands, the court of first instance reasonably proceeded from the fact that conflicting relations had developed between the parties, K. uses the disputed apartment as his only home in Moscow, and lives in it with minor children, the plaintiff has no need to use the disputed residential premises, since he permanently resides at address: 2, consisting of two rooms with a total area of ​​45.4 sq. m, also the plaintiff has no intention to actually live in the apartment, the procedure for using the living quarters in the apartment is not defined.

Under such circumstances, the court, having assessed the evidence collected in the case, guided by the provisions of Art. 30 Housing Code of the Russian Federation, art. 304 of the Civil Code of the Russian Federation, as well as paragraphs 36, 37 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated July 6, 1996 N 6/8 “On some issues related to the application of part one of the Civil Code of the Russian Federation” came to the correct conclusion about the refusal to satisfy the claims of R.

(Determination of the Moscow City Court dated April 29, 2013 N 4g/8-2559)

Inability to use residential premises together with other co-owners.

Thus, legally significant circumstances when resolving a dispute about determining the procedure for using property are the actually established procedure for using the property (which may not exactly correspond to the shares in the right of common ownership), the need of each of the co-owners for this property and the real possibility of joint use.

Based on the case materials, the appellate court established that, according to the agreement for the transfer and sale of apartments (houses) into the ownership of citizens from<дата изъята>, gift agreement from<дата изъята>, certificate of state registration of rights<номер изъят>from<дата изъята>, notification of the Office of the Federal Service for State Registration, Cadastre and Cartography for the Irkutsk Region dated<дата изъята> <номер изъят>, P.L. and P.R. owns 1/2 share of ownership of the apartment located at:<адрес изъят>.

Based on the explanations of the parties given during the trial, P.L. does not live in the specified residential premises.

Considering the claims of P.L. about moving her into the disputed residential premises, the court of first instance proceeded from the fact that P.L., as a participant in shared ownership, has the right to own, use and dispose of the said apartment within his share, including the right to use the apartment for living , which is prevented by the defendant, in connection with which P.L., being a shared co-owner of the disputed apartment, exercising the powers of the owner of the residential premises, has the right to demand the elimination of any violations of his right, including by moving into the apartment for living in it, in connection with than the court satisfied the claims for the resettlement of P.L. to a residential premises located at:<адрес изъят>.

Having established that there is no established procedure for using the apartment between the parties to the dispute, the rooms in the residential premises are adjacent, and therefore assigning the rooms in the order proposed by the plaintiff will lead to a significant infringement of the rights and legitimate interests of the other co-owner of the apartment, in addition, the size of each room does not correspond to the size shares of the parties in common shared property, the court of first instance refused to satisfy the claims of P.L. on determining the procedure for using the disputed apartment.

(Appeal ruling of the Irkutsk Regional Court dated July 11, 2013 in case No. 33-5585/2013. The claims to determine the procedure for using the apartment and collecting legal expenses were denied, since there is no established procedure for using the apartment between the parties to the dispute, the rooms in the residential premises are adjacent , in connection with which the assignment of rooms in the order proposed by the plaintiff will lead to a significant infringement of the rights and legitimate interests of the other co-owner of the apartment. (ConsultantPlus))

<адрес>

In this connection, the court decision in this part is subject to cancellation with the adoption of a decision to refuse to satisfy the claims of plaintiffs E., S. to K. to determine the procedure for using the residential premises located at the address:<адрес>.

Within the meaning of Art. 247 of the Civil Code of the Russian Federation, a participant in common shared ownership of residential premises does not have an unconditional right to move in. Under certain conditions, he may be denied this, in particular, if it is impossible to divide the living premises in kind, or to determine the procedure for using this premises, and also if his occupancy will significantly violate the interests of other participants in the common property.

Refusing D.'s claims for moving in, the obligation not to create obstacles in the use of this residential premises, the obligation to hand over the keys to the apartment, the court came to the correct conclusion that the parties were not related to each other in the disputed living space, which is a one-room apartment, the plaintiff never lived, was not in the apartment, did not transport his things, in fact, the defendant and his children live in the disputed living space, the plaintiff is registered at his place of residence at a different address: ----.

In accordance with the explanations set out in paragraph 37 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6, the Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 dated July 1, 1996 "On some issues related to the application of part one of the Civil Code of the Russian Federation", resolving the requirement for When determining the procedure for using property in shared ownership, the court takes into account the actual procedure for using the property, which may not exactly correspond to the shares in the right of common ownership, the need of each of the co-owners for this property and the real possibility of joint use.

The court correctly assumed that no circumstances had been established indicating the plaintiff’s need for the disputed living space. When purchasing a 1/3 share of the disputed apartment, the plaintiff did not inspect this residential premises, he was aware that citizens previously unknown to him were registered and living in this residential premises, and knew that the apartment was one-room.

The court took into account that the residence of different families in the same room of a one-room apartment does not comply with the principles of housing legislation and entails a violation of the rights of each of the co-owners to use the residential premises for their intended purpose, taking into account the rights of citizens to privacy and the right to housing guaranteed by the Constitution of the Russian Federation.

The owner of a residential premises exercises the rights of ownership, use and disposal of the residential premises belonging to him by right of ownership in accordance with its purpose (Article 288 of the Civil Code, Article 30 of the Housing Code).

To exercise the right to own and use property in shared ownership, the consent of other co-owners is required (Article 247 of the Civil Code).

The occupancy by the owner of a residential premises of his family members and other citizens is the exercise of the right to use and dispose of the residential premises belonging to him, and therefore the consent of all co-owners of this residential premises is required.

No evidence was presented to the court that the defendant moved other people into the disputed residential premises, which requires the consent of the other co-owner, so the court correctly rejected D.’s claim for an obligation not to provide the apartment to third parties.

(Appeal ruling of the Moscow City Court dated July 24, 2013 in case No. 11-23477 The satisfaction of claims for occupancy, non-obstruction in the use of residential premises, the obligation to provide keys, the obligation not to provide the disputed residential premises for use to third parties was rightfully refused, since the parties are not related; the plaintiff is registered at a different address.)

At the same time, the judicial panel finds the court decision subject to reversal regarding the determination of E., S., K. on the procedure for using the residential premises located at the address:<адрес>, as stipulated in this part in violation of substantive law.
Satisfying the plaintiffs’ claims in this part and allocating rooms in the disputed apartment for use by the parties, the court referred to paragraph 37 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 N 6/8 “On some issues related to the application of part one of the Civil Code of the Russian Federation."
However, the court did not take into account that the Housing Code of the Russian Federation, which came into force on March 1, 2005, does not contain rules governing the determination of the procedure for using residential premises that are in shared ownership, and does not provide for the division of apartments.
While determining the procedure for using the apartment between co-owners and allocating specific rooms in the apartment for the use of the parties, the court did not indicate in the decision the rules of substantive law on the basis of which the parties’ demands in this part were satisfied.

(Appeal ruling of the Bryansk Regional Court dated 08/13/2013 The claim regarding the determination of the procedure for using residential premises was rejected, since the Housing Code of the Russian Federation, entered into force on 03/01/2005, does not contain rules governing the determination of the procedure for using residential premises located in shared ownership property, and does not provide for the division of apartments.)

Registered in the said apartment are Full Name 3., his wife Full Name 4., and the daughter of the latter Full Name 1. Having established that Full Name 1 is not a participant in the common shared ownership of the disputed apartment, as well as the fact that she is not a member of the family of the owner Full Name 2, the court of first instance came to a reasonable conclusion to refuse to satisfy the stated requirements of Full Name 1, since on the basis of the above rules of law only the owner of the residential premises, or a member of the owner’s family, has the right to demand the elimination of any violations of his right to use the residential premises.

(Appeal ruling of the Kamchatka Regional Court dated July 25, 2013 in case No. 33-1055/2013 The claim for determining the procedure for using residential premises, the obligation not to create obstacles to living was rightfully refused, since only the owner of the residential premises or a member of his family have the right to demand elimination of any violations of his right to use the residential premises, and the plaintiff is not a participant in the common shared ownership of the disputed apartment and a member of the owner’s family.)

I'll start with a story from practice.

A young woman with a child and her ex-mother-in-law lived in a two-room apartment. The young woman's husband left her and went to live with another family. Due to the circumstances, the apartment belonged in shares of one to two of our heroine and her former mother-in-law.

At the time I am talking about, the child was about two years old. The apartment had two balconies - one in the kitchen and the second in the room where the woman and her child lived. The former mother-in-law took on the habit of almost every day, early in the morning, with a basin of washed laundry, she would open the door of the room where the woman and her child lived and, with an independent air, go to the balcony to hang the laundry.

In response to the woman’s requests not to burst into the room when the child was sleeping and she herself was not dressed, the mother-in-law confidently reported that the balcony belonged to common property, to which she had the same rights as the young woman. And on the other balcony it is inconvenient for her to hang laundry because it faces the roadway.

Desperate to negotiate with her ex-mother-in-law, who continued to ruin her life, the young woman turned to me for advice. Together we decided to go to court to determine the procedure for using the living space and to prohibit the former relative from using the balcony of the room in which the applicant lived.

After several months of intense legal battles, the court satisfied our demands, securing the right to use the second balcony for the former mother-in-law. So our heroine received some respite, until the housing issue was finally resolved and she left her former relative.

Often a person is forced to live with other people, relationships with whom are hopelessly damaged. But due to lack of finances or other reasons, it is not possible to exchange living space. In order to avoid endless quarrels and showdowns about the right to use a shared kitchen, bathroom or other rooms, you can determine the procedure for using residential premises.

The owner’s right to own, use and dispose of residential premises is enshrined in Part 1 of Article 30 of the Housing Code of the Russian Federation. The three listed categories of rights: possession, use and disposal, at first glance are very similar, but practically do not differ. However, you need to understand that each of them has an independent meaning. I'll try to summarize it briefly

Ownership of residential premises is the ability to have ownership of it. Let me remind you that ownership of real estate, which includes residential premises, must be registered in the prescribed manner. Once property rights are registered, your title is recognized by the state and is subject to protection from encroachment by others. To acquire ownership of a residential property, you must have sufficient grounds for this, for example: purchase, receipt as a gift, inheritance, and so on.

Use of residential premises- the ability to operate the residential premises in accordance with its purpose. That is, for living. When using residential premises, you should remember the existence of the rights and legitimate interests of neighbors, the need to comply with the rules for using residential premises. And for apartments located in multi-apartment buildings, it is also necessary to comply with the rules for maintaining common property. It is unacceptable to mismanage your living space, since bringing it into disrepair and disrepair can also adversely affect the apartments of your neighbors.

Disposal of residential premises- this is an opportunity to make a deal with him. That is, sell, donate, exchange your residential premises or bequeath it by inheritance. And also pledge or dispose of in any other way provided by law.

It is now clear that the owner of a residential premises has a whole range of rights in relation to his property.

But we also know that housing can not only be owned by one owner, but have several owners, each of whom has a certain share in the property.

Conflicts of interests of several owners of shares in common property - residential premises can be avoided, determining the procedure for using residential premises.

The first step to reaching an agreement between owners is negotiation. Thus, Article 247 of the Civil Code of the Russian Federation stipulates that: ownership and use of property in shared ownership are carried out by agreement of all its participants.

Thus, the owners of shares in the apartment can independently determine which part of the residential premises each of them uses individually, and which part is in joint use.

Requirements to determine the order of use can only be made in relation to property that cannot be divided.

But situations are possible when one of the owners stubbornly does not want to come to an agreement, or acts out of spite to other owners.

Then the law allows you to go to court to establish the procedure for using the residential premises.

In this case, each participant in shared ownership may demand to be given for use and ownership such part of the common property as is commensurate with his share. If it is impossible to provide him with such a share in kind, then he has the right to receive monetary compensation.

After the court makes a decision, other owners do not have the right to prevent the owner from using the residential premises within the established procedure.

What does the court pay attention to when determining the procedure for using residential premises?

Paragraph 37 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 No. 6/8 states that the court must take into account the following circumstances:

• the actual procedure for using the property, Moreover, it may not correspond exactly to the shares in the common property right
• the need of each of the co-owners for common property
• the presence of a real possibility of sharing.

In fact, the established procedure for using property may exist for years. It manifests itself in the arrangement of furniture, household appliances and a number of other circumstances. Such an order does not necessarily have to develop under the current owners; it can exist even before one of the shares in the common property changes its owner.

In other words, the established order is the rules for using residential premises that have existed for a long time. The new co-owner can either accept and join them, or try to reach a new agreement. But the established order will have an advantage.

The established procedure can be proven by any acceptable means, including testimony.

Determining the procedure for using residential premises is mandatory for all owners. Its duration is not limited.

A statement of claim to determine the procedure for using residential premises is filed with the court at the location of the disputed real estate. This category of cases falls under the jurisdiction of magistrates.

I hope that the article was useful to you.

What is the procedure for using an apartment that is in shared ownership is a question that worries people who own part of the property.

The inability to purchase the full area of ​​a home or other life situations are often the main factors for purchasing/receiving a certain share of real estate. This practice is not uncommon among Russian residents, especially when it comes to the shared distribution of ownership of an apartment.

The process of acquiring a certain share of a home has become quite commonplace, as a result of which many are familiar with it. However, fewer citizens are aware of the procedure for using the acquired share in the apartment.

Each reader of our resource will be helped to fill such problems in knowledge by the material presented below, which fully covers this topic.

What is the procedure for using residential premises in shared ownership?

In our country, legislation regulates the general essence, concept and procedure for using an apartment in shared ownership.

More precisely, to consider this point in more detail, it is necessary to refer to the 16th chapter of the Civil Code (Civil Code) of the Russian Federation. It contains most of the legislative provisions on the general right to property, including those divided into shares.

One way or another, each article of Chapter 16 of the Civil Code of the Russian Federation contains information about the shared form of ownership of an apartment.

Therefore, if this topic is especially interesting to you, do not be lazy to study it as efficiently as possible. Today’s article will highlight only the main excerpts from the legislation on the issue under consideration.

What is common ownership of an apartment? First of all, it is necessary to refer to Article 244 of the Civil Code of the Russian Federation, which provides a clear definition of what common property is shared: common property is any property owned by several persons (two or more).

If shares of ownership of property are legally defined between these persons, then such ownership is shared. It is also called joint (without allocating shares for specific persons) - determined on the basis of an agreement between the owners and or by a court verdict.

In accordance with Article 245 of the Civil Code of the Russian Federation, the shares of an apartment for each person are determined by agreement of the parties, or by decision of a judicial authority. If there are no legal grounds for a clear definition of the shares of property, then it is distributed equally.

The procedure for using the property of each of the shareholders is also determined by agreement of the parties or a court decision. Depending on the contribution made to the development and growth of the property, one of the owners has the right to increase his share in the apartment.

The procedure for using your shares in real estate is regulated by agreement of the parties or established by the court

Articles 246 and 247 of the Civil Code of the Russian Federation regulate the procedure for the disposal, ownership and use of apartment shares by the persons to whom they belong.

Their general essence is that the shareholder has the opportunity to carry out any significant actions on his part of the property only if he complies with the rules of the agreement or the provisions of the court verdict on the division of real estate.

The last most significant article of the Civil Code of the Russian Federation is Article 249, which determines the procedure for maintaining part of the property in terms of expenses for its existence.

The amount of expenses is determined in proportion to the share that belongs to each of the owners. Thus, the larger a person’s share in an apartment, the higher his expenses for housing and communal services, taxes and other payments on property.

The remaining articles of Chapter 16 to some extent affect the specific aspects of owning a share in an apartment, so it is irrational to consider them in more detail.

In case of violation of the rules of the agreement on the use of shares by one of the shareholders, liability is determined by the legislative provisions from Chapter 7 of the Code of Administrative Offenses of the Russian Federation “On offenses in the field of property protection.”

Only a professional lawyer can examine a specific case in more detail, so in difficult situations it is advisable to turn to him.

Rules for allocating an apartment share

How to allocate a share in an apartment?

Are there rules for living in an apartment with shared ownership? Allocation or expansion of an apartment share by adding something to the shareholder (allocation in kind) is an event that requires compliance with certain legislative nuances and rules.

They are largely determined by the previously mentioned provisions of the Civil Code of the Russian Federation, although in some situations it is impossible to avoid turning to the Civil Procedure Code or even the Criminal Code.

In any case, all the rules for allocating an apartment share are based on the provisions of the Civil Code of the Russian Federation. The main ones are:

1. Each owner of common property has the right to receive a share in it commensurate with his contributions to the improvement of the home and certain other things.
2. If the allocation of a share to one of the owners of common property is carried out incompletely, he has the right to receive compensation for the area of ​​​​the home that was taken away from him. Naturally, the citizen must decide for himself whether to keep the share or receive compensation for it.
3. The allocation of a share in kind by one of the co-owners through the addition of any residential premises to the previously divided property can only be carried out if a number of mandatory conditions are met (see below).
4. In situations where the allocation of a share in the common property to one of the owners cannot be carried out, the remaining shareholders undertake to pay him monetary compensation equivalent to the lost property.
5. The process of determining the allocated part, for example, an apartment, is based on consideration of evidence from potential shareholders showing their interest in obtaining full ownership of the majority of the property. The size of a portion of the property is determined based on many factors: age, presence of children, disability, professional activity and others.

Allocation of part of the property in kind through extensions are situations that need to be considered in more detail. To carry out such a procedure, the shareholder must meet a number of conditions:

• obtain permission from local administrative authorities to carry out home reconstruction;
• agree on the allocation of the share with the remaining shareholders;
• When allocating a share in kind, the shareholder undertakes to recalculate the amount of expenses. He must bear them based on the new size of his share (exception - an extension is a separate property of a person);
• By allocating a share in this way, the owner must not cause damage to the common property, otherwise he undertakes to compensate for it.

Controversial issues that arise during the allocation of a share in kind are resolved through the courts.

Shareholders can legally secure ownership rights in two ways: peacefully (by concluding an agreement among themselves) or through the court. Each shareholder undertakes to comply with the clauses of such an agreement or the provisions of the court verdict.

Procedure for using an apartment in shared ownership

How can you use your share of the right to real estate?

The procedure for using shares in an apartment, as well as the rules for their allocation, are determined by legislative provisions from the Civil Code of the Russian Federation.

The main regulator expressing the general essence of this process is Article 247: it is possible to own and use shared property only taking into account previously agreed conditions with the remaining shareholders (in case of peaceful division of shares) or based on the rules established by a court verdict.

The procedure for using shared ownership is as follows:

1. Having received a share in the apartment commensurate with its legal requirements, each shareholder undertakes to use part of the property in accordance with the conditions determined by the share agreement or by the court.
2. If any rights are infringed or there is a desire to increase their share (if there are strong arguments for this), each of the owners has the opportunity to go to court to resolve all controversial issues.
3. In addition, the shareholder has the right to appeal the court verdict if he believes that the distribution of shares was carried out unfairly.
4. If possible (the presence of several bathrooms, kitchens, etc.), the parties have the right to do this both peacefully and in court.
5. If it is impossible to completely isolate the shares (the absence of several bathrooms, kitchens, etc.), it is not worth filing a claim to isolate the shares from each other. In such situations, the claim will not be considered, since it is almost impossible to carry out redevelopment and refurbishment of an apartment in an apartment building.

As you can see, the procedure for using an apartment that is in shared ownership is a simple process, which consists of complying with all the terms of the agreement or judicial acts on the division of real estate between several owners of common property.

Expert lawyer's opinion:

The shared ownership regime is provided if there are several owners of the property. This situation is possible when buying an apartment using maternity capital, spouses, privatizing an apartment, or entering into an inheritance.

Shares in the right are allocated in accordance with the ownership documentation.

However, it should be understood that having a share in the right to an apartment, you can use the entire apartment, including common areas such as a kitchen, bathroom or hallway.

Restrictions only in case of . Upon sale, the remaining shareholders have. Only after the notarized refusal of the co-owner can the share be transferred to an outsider.

In practice, the concepts of “share in right” and “share in kind” are often confused. Only a court can oblige you to allocate a share in an apartment in kind based on the technical parameters of the property. The share in right does not always correspond to the share in kind, that is, it is impossible to allocate, for example, 2/3 in one room.

It is impossible to use such an object. Simultaneously with the division of rooms, the court establishes a regime for the use of common premises. It is impossible to divide the bathroom, toilet and kitchen between shareholders.

It often happens that the available share of property is so small that it is not possible to allocate it in kind.

It may be difficult to use such a share on an equal basis with other shareholders. In this case, owners of large shares can apply to the judicial authorities to force the owner of a micro share to sell part of the apartment to the remaining owners at an affordable price.

What happens if one of the shares is insignificant?

Judicial practice of shared ownership often encounters situations where one of the shared owners files an application to the court. In it, he asks to forcibly remove the other shareholder from the right to property on the condition that he pay him appropriate monetary compensation. The plaintiffs explain this behavior by the fact that the second co-owner has an insignificant part of the property.

The legislation of the Russian Federation considers such situations from the provisions of Article 252 of the Civil Code of the Russian Federation: depending on the specific situation, termination of the rights to property of one of the shareholders with the payment of monetary compensation to him is possible both unilaterally and with his approval. But only if the share is insignificant.

The “insignificance” of a share is determined based on its size and the expediency/necessity of using it on the part of the shareholder. The judicial authority determines the “insignificance” of the share based on evidence from both the plaintiff and the defendant.

It is worth understanding that shares of 1/3, ½ or 2/3, by definition, cannot be insignificant.

In the case when the court received a claim from one of the share owners against another share owner to remove the latter from the right to own, for example, a seventh part of the common property, three outcomes are possible:

• mutual consent of the parties and removal of the defendant from the right of ownership with him receiving monetary compensation from the other shareholder of the apartment;
• unilateral removal of the defendant from ownership rights with him receiving compensation from another shareholder of the apartment, if the “insignificance” of his share is fully proven;
• denial of the claim to the plaintiff, since the “insignificance” of the defendant’s share was not proven.

Such court cases are considered with the mandatory use of Article 35 of the Constitution of the Russian Federation (the right to own property), since its violation is unacceptable.

Disposal of property and judicial practice in “equity cases”

Legal advice

In accordance with the law, each shareholder can dispose of his part of the property with the full right of the owner. However, it is worth understanding that he is also burdened by certain terms of the agreement with other shareholders, or by a court decision.

Disposal and ownership are practically interchangeable concepts, therefore the owner must dispose of his share only in compliance with previously agreed conditions and without violating the rights of the other owners.

Considering that shared ownership is in fact common property, before carrying out any significant actions on it, it is important to consult with the other shared owners (Article 246 of the Civil Code of the Russian Federation).

Judicial practice in so-called equity cases is widespread in Russia. When considering such situations, the judiciary uses all the legislative provisions presented above. At the end of the article, our resource will present you with a typical situation regarding a “share business”:

Divorced spouses Vasily Ivanov and Alla Baklashkina decided to divide their 3-room apartment (75 sq.m.) into shares. Since the only daughter of the former spouses, 13 years old, remained with her mother, citizen Baklashkina and her minor child were allocated a large part of the apartment (50 sq.m.), that is, 2/3 of the property. At the request of citizen Ivanov and citizen Baklashkina, the court determined the procedure for using the apartment, which all shareholders must adhere to.

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Discussion: there is 1 comment

Hello. I am the owner of 1/2 share in a 2-room apartment. Recently, the previous owner of 1/2 of the other share sold it to another owner. I, my husband and adult daughter, have been living for 3.5 years in a room of 18 sq.m., and the new owner, a man, has a room of 11 sq.m. He said that he wants to receive compensation for the missing meters of living space. How is such compensation calculated, in what amounts and within what time frame is it paid by me to the other owner. How can the issue of payment be resolved if I don’t work? What mandatory amount will I have to pay him? From a conversation with him, I learned that he is not officially married, but has two children from two different women. He can register both children without my consent, can he register the child’s mother in his living space without my consent, if the relationship is not formalized, but the child must live with the mother? What if it’s made official? Can I be forced to give him my room if more people are registered with him, although the second child from another woman will only be registered? What if the second family is only registered, but will not live? My phone number, if needed, is 889638810665. I’m really looking forward to your answer.

Answer

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The acquisition of a share of residential property is a common phenomenon in the Russian Federation. Citizens are driven to take this step by the impossibility of purchasing a complete home for financial and other reasons. However, share owners do not always understand how to use housing that also belongs to other owners. The question of what is the procedure for using residential premises in shared ownership becomes especially relevant when inheriting or dividing property.

Definition of shared ownership

The civil legislation of the Russian Federation defines shared ownership of property as common property, the shares of the owners of which are determined by agreement or in court.

If the shares are not established by agreement and their determination is impossible on a legal basis, they are considered equal.

Participants in shared ownership have the right to dispose of their part of the property at their own discretion. The owner can pledge his share, donate it, sell it, bequeath it, or otherwise dispose of it.

Legislation on the procedure for using shared ownership of residential premises

The role of the main regulatory document in establishing the rules for the use of common property in shared ownership is assigned to the Civil Code of the Russian Federation.

The concept of “established procedure for use” implies a voluntary agreement of the parties to carry out such actions, concluded orally or in writing.

Establishing the procedure for using residential premises

Rules for the use of residential premises that are in shared ownership, for example, an apartment, are established on the basis of the provisions of Art. 245 Civil Code of the Russian Federation. Parts of the apartment for any citizen are distributed by agreement of the parties, or by court decision.

The right to use an apartment in shared ownership is also determined. Housing is divided equally if there are no legal reasons for a clear allocation of shares.

When allocating a share in residential real estate to a participant in shared ownership, carried out in court, the following nuances are taken into account:

• the owner’s contribution to the improvement of the home;
• whether the share has been allocated to one of the owners in full. Otherwise, he receives the right to receive compensation for that part of the area by which his share was reduced;
• If the allocation of a share in the common property to one of the owners is not realized, the remaining participants must pay him monetary compensation equal to the lost property.

In addition to the claim, you must submit to the court a package of documents necessary to resolve the case.

Where to file a claim

The statement of claim is submitted to the magistrate or to the district court at the location of the shared ownership (Part 1, Article 30 of the Code of Civil Procedure of the Russian Federation).

If only a requirement is stated to determine the procedure for using housing, then the case is within the jurisdiction of the magistrate’s court (clause 7, part 1, article 23 of the Code of Civil Procedure of the Russian Federation).

If other non-property claims are presented (determining the order of expenses for common property, moving into residential premises, etc.), the case is considered by the district court.

The same authority will consider a claim of a property nature, for example, for recognition of ownership of a share if its price exceeds 50 thousand rubles.

What documents need to be provided

Based on the requirements of Art. 132 Code of Civil Procedure of the Russian Federation, include:

copies of the claim according to the number of defendants and third parties;

power of attorney or other document certifying the authority of the representative;

documents confirming the circumstances on which the claims are based, and their copies according to the number of defendants and third parties;

receipt of payment of state duty.

How does a claim proceed in court?

According to Art. 154 of the Code of Civil Procedure of the Russian Federation, the period for consideration of civil cases, including on the issue of establishing the procedure for using housing, is two months, and for magistrates’ courts - one month.

In practice, these deadlines are significantly delayed due to the heavy workload of civil courts. If an examination is required, the period for consideration of the case may also increase.

During the hearing, the court analyzes documentary evidence and hears arguments from the parties. After assessing the circumstances of the case, the court makes a decision regarding the merits of the claim.

Factors taken into account by the court

First of all, the court will take into account the rules for using the premises that existed before the dispute arose and may suggest returning to them if they did not infringe on anyone’s rights.

In other cases, when establishing, for example, the right to use the spouses’ apartment, the court will proceed from:

• layout of the premises (is it possible to isolate the owners from each other);
• the size of the share of each owner. This is not a decisive factor, because the room allocated to the owner for sole use may be disproportionate to his official share;
• number of separate and walk-through rooms;
• the presence or absence of family ties between the owners and the degree of their proximity;
• the owners have other real estate;
• the owner's needs for specific real estate. Thus, a woman with a child can claim a larger area than a single person.

On the allocation of a share in residential premises

When considering the issue of establishing the parameters of the ownership share, if it occurs in court, the following factors are taken into account: