What are the nuances?
- Ownership of housing is received by two owners, the shares of each are separately stated in the contract.
- The transaction cannot be completed without the consent of the second spouse.
- The procedure for obtaining tax deductions is changing.
- The marriage contract should be supplemented with changes: who, in the event of a divorce, retains the apartment, the size of the share that the children are entitled to.
Let us warn you about the difficulties associated with purchasing a home in shared ownership between spouses.
A conflict of law arises. The Family Code states: property acquired by a husband and wife becomes joint property. Exception: by agreement between husband and wife, shared ownership is established.
Advice: if your family decides to make a purchase in shared ownership, draw up a prenuptial agreement. A prenuptial agreement is not an empty formality, but an agreement that will avoid disputes about who will keep the apartment in the event of a divorce. In the marriage contract, we advise you to discuss in detail the important points regarding the division of the apartment.
Acquisition of real estate in common shared ownership
Rosreestr, in its explanations, has repeatedly indicated that a paid acquisition agreement at the expense of the common income of the spouses can be considered as an agreement containing elements of a marriage agreement (and, accordingly, it must be concluded in notarial form), if the parties to the agreement indicated that this agreement was concluded in including in accordance with the norms of the Family Code of the Russian Federation, in particular, its articles 41, 42, it clearly expresses the will of the spouses to change the regime of joint ownership established by law, defines the procedure for the use of property in shared ownership and its division in the event of divorce .
It should be noted that this issue is not problematic if each of the spouses separately acquires in their own name a share in the right to the same property at different periods of time, both shares will also be in the common joint ownership of the spouses.
At the same time, if shares in the right are acquired by spouses at the same time, there is no unambiguous interpretation of the legal position by the Territorial Directorates of Rosreestr in different regions.
So, is it possible for spouses to acquire a property in common shared ownership under a real estate purchase and sale agreement concluded in simple written form, at the expense of the spouses’ common income, if they state in the text of the obligation that each of the acquired shares in the right also falls under regime of common joint property of spouses in accordance with the Family Law of the Russian Federation.
In accordance with Art. 244 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code), property owned by two or more persons belongs to them under the right of common ownership.
In addition, property can be in common ownership with the determination of the share of each owner in the right of ownership (common ownership) or without determining such shares (joint ownership).
does not imply the formation of both joint and shared ownership of the property.
According to Art. 128 of the Civil Code also includes objects of civil rights, including cash and documented securities, other property, including non-cash funds, uncertificated securities, and property rights.
By virtue of Article 256 of the Civil Code, property acquired by spouses during marriage is their joint property, unless an agreement between them establishes a different regime for this property; the rules for determining the shares of spouses in common property during its division and the procedure for such division are established by family law.
At the same time, according to Article 33 of the Family Code of the Russian Federation (hereinafter referred to as the FC), the legal regime for the property of spouses is the regime for their joint ownership; The legal regime for the property of the spouses applies unless otherwise provided by the marriage contract.
Property acquired by spouses during marriage is their joint property; The common property of the spouses also includes real estate acquired at the expense of the common income of the spouses and any other property acquired by the spouses during the marriage, regardless of which of the spouses it was acquired in the name of or in the name of which or which of the spouses contributed funds (Article 34 of the Family Code) .
Clause 90.1 of the Procedure for maintaining the Unified State Register of Real Estate, approved by Order of the Ministry of Economic Development of Russia dated December 16, 2015 No. 943, stipulates that upon state registration of a share in the right of common shared property coming into the joint ownership of spouses:
— information about both spouses is indicated in one record of property rights;
- in relation to the type of right, the words “common shared ownership” are indicated in the record of right;
— after indicating in the entry on the property right the size of the share in the right of common shared ownership, the words “in joint ownership” are indicated.
By virtue of the provisions of Article 41, the spouses have the right to change the statutory regime of joint ownership by a marriage contract, which is concluded in writing and subject to notarization.
The appeal concerns the acquisition by spouses of a property by purchasing shares in the right to it, when, in accordance with the agreement, they indicate that they are acquiring shares in joint ownership.
As a general rule, if the owner transfers a real estate object to several persons simultaneously on the basis of a transaction, such acquirers acquire the right of common shared ownership of this object, unless the law provides for the possibility of forming common joint ownership of it.
When the right holder alienates a property owned by him (as a whole) into the ownership of the spouses, the latter acquire the right of joint ownership of the property, unless otherwise established by agreement between them; the right of common shared ownership of a property acquired by spouses can arise only if the legal regime of the property of the spouses is changed by them by concluding a marriage contract, including the terms of the marriage contract will be contained directly in the contract of sale and purchase of the property, in connection with which, it will be subject to notarization.
Based on the foregoing, we can conclude that spouses, acquiring a property as shared ownership, enter into an agreement containing elements of a marriage contract, since it expresses the will of the spouses to change the regime of joint ownership established by law, and therefore, this agreement is subject to notarized certification.
Algorithm for selling an apartment with shared ownership
- Each participant in the common shared ownership must consent to the transaction.
Otherwise, the transaction will not have legal force (clause 1 of Article 246 of the Civil Code).How to express this consent correctly?
It is necessary for each participant to sign a sales agreement. If it is not concluded, then all participants must personally sign the agreement.
- Calculate the market price for selling an apartment.
To do this, use the services of an appraiser or compare market prices for housing in your region. An appraiser's opinion will be needed if the transaction is being executed as a mortgage. - Look for a buyer.
You can do this yourself by advertising through various websites or using the services of a real estate agency. - Collect documents to complete the transaction.
What documents will be required? The list is established by Articles 16 and 17 of the State Law. registration of rights to real estate and transactions with it. Among them: documents confirming the transfer of housing into your ownership, confirmation of the rights to the share that each participant in the common shared property has, an extract from the house register, BTI information. - Sign the agreement.
Sign in person or draw up a power of attorney, certify with a notary that one of the participants has the right to sign on behalf of the others. - Submit a package of documents for the state. registration with Rosreestr, then receive payment for the transaction.
Legal General Director Alexandra Brodelshchikova answers:
When purchasing such an apartment, you need to check whether the shares in it belong to minor children. If they belong, then it is necessary to ensure that their parents obtain consent from the guardianship and trusteeship authorities to sell the home.
If not all shares are purchased, but only a part, then it is necessary that the owners of the remaining shares are notified in writing about the sale, and also that they consent to the sale.
It is also very important to find out whether the owner is married. If yes, then you need to ask him for the notarized consent of his spouse. Otherwise, the transaction may be declared invalid, and therefore the shares will be returned to the previous owner.
Before completing the transaction, it is necessary to check the owner for his adequacy. To do this, you just need to talk. You can also ask him for certificates from the psychoneurological and narcological dispensaries about the absence of his registration.
Documents on ownership of shares, as well as other official papers, must be carefully checked. This will help avoid fraud. In addition, it is necessary to interview other residents of the house about who lives in this apartment and how they can be characterized.
How should a buyer check a secondary apartment?
Which secondary apartments are not worth buying? Legal aspects
Sale of spouses' home
Throughout family life, a couple needs to improve their living conditions, especially after the birth of children. From time to time it becomes necessary to sell housing that is already owned by spouses.
Selling a home during marriage also has its own characteristics. In many ways, the procedure depends on the type of common property in which the housing is registered.
Sale of jointly owned real estate
Housing that is jointly owned by spouses is managed jointly by the couple by mutual consent. To sell it, you will need the notarized consent of the husband or wife.
The sale of real estate registered in the name of one of the spouses also has its own distinctive features.
Read how to sell an apartment in joint ownership.
Sale of real estate in shared ownership
Each owner can dispose of his share. However, the preemptive right of the remaining owners to purchase a share is of particular importance.
Before selling, a person must notify the other co-owners in writing of their desire to sell their part of the property. They are given a month to consider such a proposal.
If during this time no one volunteers to act as a buyer, the seller is allowed to sell the housing on the same terms to other persons.
Find out more about selling an apartment in shared ownership.
Types of property of purchased housing
When buying their own living space, many people wonder how best to decorate an apartment for spouses - for one or for two. There are several options:
- joint property
- total share,
- personal.
It is difficult to name the most suitable solution for a particular situation. Such issues are resolved individually, taking into account life circumstances.
Registration of real estate into common joint ownership
Many couples find it difficult to decide whether joint or shared ownership is better when buying an apartment. As practice shows, the first option is still the most common. In this case, the shares of each party are not allocated, and the spouses use the real estate on equal rights. In this case, the documentation lists two owners.
The division of property in the event of a divorce occurs in court if one of the parties does not agree with the established size of the share.
In addition, spouses often register housing as joint property with their children. Thus, all family members are owners of a common home.
Find out more about joint ownership of an apartment without determining shares.
Registration of real estate as shared ownership
Spouses can initially arrange the apartment in such a way as to determine the shares of each of them. It is not at all necessary that the parts of the property be equal. The purchase of an apartment in shared ownership by spouses in 2021 is possible by concluding a purchase and sale agreement, which immediately indicates the shares of the parties.
The share of each spouse is separate, due to which it can be disposed of without any restrictions. The owner can sell his part, donate it, separating it from the common property.
This is the ownership mode most often chosen by families with children. This allows the heirs to be given a legal share of the home.
As already noted, shares can be registered by concluding a purchase and sale agreement. However, this is not the only way in which it is possible to acquire shared ownership.
Shares are also determined using a marriage contract. This document can be concluded at any time in the family life of the spouses, defining all property issues in it in order to avoid disagreements in the future.
Find out more about registering shared ownership of an apartment.
Registration of real estate into sole ownership
There are often situations when an apartment was purchased during marriage, but there is only one owner. Due to the fear of losing their home, as well as the reluctance to participate in property proceedings in the event of divorce and division of common property, many seek to insure themselves.
In order not to acquire common joint or shared property between spouses, and at the same time to protect themselves, more and more Russians prefer to buy an apartment for themselves while married.
The legislation defines a category of objects that can be classified as personal property of a person, for example, gifts. Therefore, one option is not to buy a home, but to receive it as a gift.
Not everyone has relatives who can give their loved ones housing. Therefore, many are forced to look for other options.
An apartment purchased during marriage can be registered in the name of one of the spouses through the conclusion of a prenuptial agreement. Using this document, it is easy to transfer any property to one of the spouses. At the same time, the second one will not be able to lay claim to this object in the future.
