Joint property
Property acquired during marriage, including real estate, is considered jointly acquired. This is what the Civil Code (Article 256) and the Family Code of the Russian Federation (Article 34) say.
The legislation does not consider it necessary to take into account what income each spouse had and how he spent it. A wife who ran a household, or a husband who was unsuccessfully engaged in a business that resulted in only losses, have equal rights to joint property with their spouses.
The law also doesn’t care who the property is registered to. For example, the buyer under the contract for the sale and purchase of a house is the husband, his last name is on the certificate of ownership, but the property was purchased during the marriage. This means that the house is the common property of the spouses.
Not all property becomes joint property even after people have officially started a family. It may turn out that one or both spouses also have personal property.
Common shared ownership
The common property of spouses' real estate is divided into two types:
- Share.
- Joint.
Shared ownership implies that the shares of each spouse in the property are strictly defined. This determination can be a simple percentage. For example, a couple privatized an apartment for two. Each is provided with a certificate of title indicating that the party owns 1/2 of the property.
The share in the apartment can be specified and allocated in kind. For example, in a two-room apartment, one room belongs to the wife, the second to the husband.
The division of spouses' real estate into shares is subject to mandatory registration with Rosreestr. Upon completion, each shareholder becomes a full owner. With his part of the real estate, he can carry out the entire range of legal transactions. There is no need to obtain permission from the second shareholder - the spouse.
It is important that purchase and sale transactions of a share by a participant in shared ownership are carried out in compliance with mandatory conditions. He is obliged, first of all, to offer to buy out his share in the real estate to other shareholders (Article 250 of the Civil Code of the Russian Federation).
If, at the same time as their parents, their minor children acquire their shares in real estate, before they turn 18, their parents dispose of such shares, but only with the consent of the guardianship and trusteeship authorities.
It is not always possible to determine the size of shares by law or by agreement. In this case, the shares of the owners are recognized as equal. But they can be increased legally. As such, an additional investment of personal funds of one party in the acquisition or improvement of common shared property is considered (Article 245 of the Civil Code of the Russian Federation).
For example, a couple purchased an apartment worth 4 million rubles during their marriage. Of these, 3 million rubles. were taken from the family budget, and 1 million rubles. – these were savings made by one of the spouses before marriage. A few years later, the couple decided to divorce and divide the property through the court. By decision of the judge, the common joint property of the spouses was transferred to shared property. One of them became the owner of a share of 37.5%, and the second owner of a share of 62.5%.
Common shared ownership
Advantages and disadvantages
The division of common property into shares has both its positive and negative aspects. The biggest advantage of such ownership is its division in the event of a divorce. If shares in real estate are established, there is no need to arrange any special litigation. Everyone remains the owner of the share that belongs to him as a property. If a minor child owns a share, it will be disposed of by the parent with whom he remains to live after the divorce.
A great convenience for the owners themselves is that they are full owners. When making a real estate transaction, there is no need to obtain written permission from other owners.
The disadvantages of such ownership stem from the advantages. If permission to alienate a share is not required, the second owner may be faced with a situation where the other share is transferred into the possession of a third party. If the sale and purchase provides for a right of first refusal, no deed of gift notice is required when registering. And the second owner may simply be presented with a completed transaction. And even disguise the purchase and sale by issuing a deed of gift.
Possession, use and disposal
If spouses own real estate as shared ownership, but continue to live together and manage the property jointly in common interests, the process of ownership and use is not particularly different from the disposal of joint property. They can also sell their apartment to one buyer by drawing up one general purchase and sale agreement.
There are differences if the owners intend to dispose of their shares independently of each other. They are not required to request transactions with their part of the property. Only notify in case of sale to other owners.
The procedure for disposing of common property located on the territory of the real estate is determined on the basis of an agreement between shareholders. If this use is impossible for some reason, the shareholder has the right to demand monetary or property compensation (Article 247 of the Civil Code of the Russian Federation).
Property acquired before marriage
The property that the spouses owned before the marriage was registered remains their inviolable property. What if the husband “got” married with his one-room apartment, sold it, and the proceeds were used to buy a new, larger apartment? Most likely, when dividing property, the court recognizes the ownership right of this spouse to that part of the apartment that corresponds to the amount of personal funds invested by him, and recognizes the remaining part as joint property. You just have to prove that the money that the husband received from the sale of his personal one-room apartment was used to buy a larger apartment.
Property may be recognized as joint
Owners of personal property should be aware that an apartment purchased before marriage can become joint property if its value has been significantly increased by the joint funds of the couple or the personal property of one of the spouses. Even the work of one of the spouses can be taken into account. You have made expensive repairs or redevelopment - and the apartment is no longer your personal, but joint property. We should pay tribute to those people who, over the course of many years of marriage, regularly collect all the receipts and contracts proving the cost of home improvement.
How are shares determined?
Depending on the size of the shares, each owner receives his own personal scope of authority to dispose, use and own the common property.
There are several ways in which shares in joint property are determined. This:
- legal - that is, one that is determined legally. If the agreement or any other act establishing shared ownership does not directly indicate the size of the shares of each participant in shared ownership, then, in accordance with paragraph 1 of Article 245 of the Civil Code of the Russian Federation, all their shares will be recognized as equal. However, according to the same Russian legislation, each of the owners can challenge the size of their share in court. This can be done if, for example, the contribution of one of the owners to the creation of property was greater than that of the others. In such a situation, it should be remembered that the task of providing evidence lies entirely with the person challenging the size of the shares;
- voluntary. If, in the process of using common property, its owners or one of them resorted to additional construction in order to increase the area of housing, the participants in such shared ownership may, on their own initiative, enter into an agreement aimed at changing the size of shares on a voluntary basis;
- judicial. This method most often directly follows from the first, since it is usually resorted to by owners of common property who are dissatisfied for some reason with the size of their share. At the same time, they must have significant evidence to re-define the shares.
Property purchased with a mortgage before marriage
Many questions arise when dividing real estate purchased with a mortgage. A credit relationship with a bank is sometimes stronger and lasts longer than a marriage.
Let's say the apartment was purchased with a mortgage during the marriage. Regardless of which of the two the loan is issued to, the law considers such real estate as joint property of the spouses. In a divorce, in most cases, the mortgage will be divided equally, and each spouse will have to continue to pay the bank their share of the remaining loan amount. But there are also more complex cases.
For example, a man, being single and happy, purchased an apartment with a ten-year mortgage, and three years later got married. Is the apartment his personal or joint property? On the one hand, housing was obtained before marriage. On the other hand, payments for it were also made during the marriage.
As practice shows, the court recognizes the apartment as the personal property of the husband, while classifying loan obligations as jointly acquired property. As a result, one of the spouses has to compensate the other half of the amounts paid to the bank during the marriage. But here, too, options are possible. For example, spouses can come to an agreement on dividing an apartment in different proportions, according to the amounts paid.
Common joint property
When property objects are acquired by spouses during marriage, it is the common joint property of the husband and wife, unless otherwise provided by the terms of the contract. But only on the condition that it was purchased with funds from the family budget. Those. if the property is transferred into ownership on the basis of gratuitous transactions, it is not subject to division (for example, an apartment that came into possession by inheritance of property).
Property acquired for the personal use of each spouse (with the exception of luxury items) will also not be considered joint property.
The owners' shares in joint property are not allocated. Joint property of spouses presupposes that both parties use and dispose of it on equal rights. When making transactions with such property, it is necessary to seek consent from the other party.
Joint property is recognized as such, even if it is registered in the name of only one of the spouses. But it was bought during marriage using common funds. While the owners of shared property may be complete strangers, joint property implies that only the husband and wife act as owners.
The RF IC establishes that in such property each spouse has the right to an equal share upon division (Article 39). Those. In case of divorce, such property will be divided equally.
But the spouses themselves have the right to distribute shares in joint property at their own discretion through a written agreement:
- The separation agreement.
- Marriage agreement.
Spouses can establish a contractual procedure and distribute shares in property at their discretion at any time during the existence of the marriage and after its termination. Moreover, they are given the right to resolve this issue even before the wedding by signing a prenuptial agreement.
Legal division by court assumes that the joint property of the spouses is divided only equally. But first, everyone’s shares will be determined, and only after that will a division in kind take place.
Advantages and disadvantages
The main advantage of the joint common property of the spouses is the inability to dispose of it without the consent of the second owner. And while this condition can still be circumvented with a number of property objects, this will not work with real estate. When making transactions for the alienation of such objects, it is required to provide not only the written consent of the second spouse, it must also be notarized.
At the same time, the restriction can be easily circumvented in relation to property that de jure belongs to two parties as joint property of spouses, but is actually registered only in the name of one of them. This practice is often applied to vehicles.
The main disadvantage of such ownership of property is the difficulty in establishing shares and the need to draw up additional agreements in the event of division or go to court. If spouses divorce, they can continue to maintain joint ownership of the property, but it is preferable to divide it. When shares have already been allocated, no additional agreements will be required. You just need to solve the issue with the practical section. And when the property is jointly owned, you will first need to determine the size of the shares. This means incurring financial expenses. Plus time costs.
Common joint property
Possession, use and disposal
Property owned jointly is distributed between spouses in equal shares. They have equal rights to use it. And there is no need to reach a separate agreement regarding the use of common premises.
To conduct transactions with such property, one of the spouses is obliged to seek permission from the other. If we are talking about transactions subject to state registration, consent to them must be written, or the agreement should be signed immediately in the presence of two owners.
Sometimes this prohibition is circumvented, but in this case the injured spouse has the right to go to court with a demand to declare the transaction invalid or to allocate him a share of the proceeds.
Do you agree?
If property is acquired jointly, then it should be disposed of together or, as Article 35 of the Family Code states, by mutual consent. In the case of any real estate transactions, the consent of the other half must be certified by a notary. You will have to “ask” your spouse both when selling a home (disposal of common real estate) and when purchasing it (disposal of joint capital).
As you can see, there are many nuances in matters of dividing real estate between spouses. In practice, there are very complicated cases, and only the court can classify family property as personal or jointly acquired, based on specific circumstances and the evidence presented.
