When resolving issues related to shared ownership, Art. 246 and 247 of the Civil Code of the Russian Federation. The first rule establishes rules for the disposal of such property. Features of the use and ownership of common shared property are enshrined in Art. 247 of the Civil Code of the Russian Federation.
Practice shows that, by agreement of the co-owners, any order that suits all parties can be established. Of course, participants in legal relations should not violate the interests of third parties. If agreement between the parties has not been reached, then the procedure for use and ownership is determined by the court. This provision is enshrined in paragraph 1 of Art. 247 of the Civil Code of the Russian Federation.
Member Rights
Equity owner, according to paragraph 2 of Art. 247 of the Civil Code of the Russian Federation, can count on receiving for use and possession of part of the property. It is determined in proportion to his share. If it is not possible to provide this part, then the participant may demand appropriate compensation from other co-owners using his share.
Art. 247 of the Civil Code of the Russian Federation with comments
Due to the fact that shared ownership involves the vesting of rights of all participants in the relevant legal relations equally, these persons may at their discretion take any action that does not contradict the law, other regulatory documents, and also does not violate the interests of other entities. They possess, actually use, extract useful properties from the property. The method of use and ownership, on the one hand, is predetermined by the specifics of a particular thing, and on the other, by the will of the individuals themselves.
For example, a house can be used by all owners at once. But Art. 247 of the Civil Code of the Russian Federation does not prohibit participants in legal relations from deciding that the construction will be operated by one or not all, but only some of them. In this case, the parties may determine the compensation for this or not establish it at all.
When do owners agree on the use and ownership of shared property?
Reasons for applying Art. 247 of the Civil Code may be different. The need to establish the procedure for use and ownership may be determined by objective circumstances. So, for example, due to the small area of the apartment or the specifics of its layout, all owners cannot physically reside in it. The reasons may be subjective. For example, people simply do not want to be under one roof.
In some cases, the common property is exploited by the participants in the legal relations in turn, if partial use is not possible. For example, the sequence for driving a car stops.
It should be emphasized that, with the consent of the participants, the exercise of the powers to use and possess values can be carried out in different ways. In some cases, one of the owners may be eliminated from the legal relationship with or without compensation.
Nuances
The decision on the procedure for the use / ownership of shared property shall be adopted unanimously. In this case, the value of the share of a particular participant does not matter.
In Art. 247 of the Civil Code of the Russian Federation has not established a specific form of agreement. This means that the general rules of Articles 158-165 of the Code apply to it. State registration of the agreement is not performed.
According to many lawyers, the provisions on the written form of the document and the consequences of non-compliance should not be mechanically applied. When considering disputes under Art. 247 of the Civil Code of the Russian Federation in judicial practice, the features of the subject composition of legal relations are taken into account. In particular, it is important who exactly acts as owners: an individual, citizens and legal entities, an organization and a state, etc. Disputes may arise between owners and third parties.
Features of litigation
If the parties failed to reach an agreement, then under Part 1 of Art. 247 of the Civil Code, the rules of ownership and use are established in court. The specific criteria that are used in this case are not established in the legislation. However, they are implied.
First of all, property properties are taken into account. Secondly, the specificity of the distribution of shares among participants in legal relations is important.
Part of the property can be allocated for use and possession of a particular owner, if it is technically and legally possible and there is an agreement. It is determined in proportion to the proportion.
For example, the subject is the owner of 1/3 of the apartment. He can be allocated some kind of room for use. Meanwhile, such actions do not mean that a citizen receives real square meters. In a subjective sense, its share does not change. The participants only reach an agreement on how to exercise their rights.
Specific cases
The inability to provide the owner with a part of the property may be due to some factors:
- Firstly, the properties of the thing itself - it can be indivisible. This means that the selection in kind will entail a change in the purpose of the thing.
- Secondly, not in all cases the part of the property allocated to a person is proportional to his share. For example, in a shared property is a house with an area of 90 m 2 . It has three residential (18, 23 and 25 m 2. ) And auxiliary premises (kitchen, bathroom, corridor). Suppose the area of the latter is 34 m 2 in total. These facilities will always remain shared. To allocate for use parts of the house, commensurate with the shares, it is necessary that the rooms are 22 m 2 . Due to the fact that there are no such areas in the example, the owner of the smallest premises may demand compensation from the remaining owners for the missing 4 meters.
Aircraft Explanations
Resolution No. 4 of 1980, as amended by 2007, states that when a court establishes a procedure for using a residential building in accordance with Art. 247 of the Civil Code of the Russian Federation, each participant receives a specific part of it based on its share. The right of common ownership does not terminate.
The room allocated to the participant may not be isolated and do not correspond exactly to the shares belonging to the parties to the legal relationship. If a room is provided whose size exceeds the share, the entity may be awarded compensation for the operation of a part of the room that exceeds the share.
When making the calculations, the cost usually charged for the use and ownership of property should be taken into account.
Apartment buildings
Disposal of common property in MKD is carried out according to completely different rules. With respect to owners, the provisions of Articles 290 of the Civil Code and 36-48 of the LCD apply.
The Housing Code enshrines the following. The owners of apartments in MKD, by common ownership right, own the premises used to service more than one living space in the house. These include, among other things, stairwells, elevators, technical floors, corridors, cellars, other areas in which engineering communications, roofs and so on are located.
In accordance with the provisions of Article 246 of the Civil Code, the shareholder may dispose of his share of the common property, if he has the consent of the other participants. However, in the MKD this rule does not apply. The owner of the apartment cannot sell part of the common property without having sold, in fact, the apartment. Upon transfer of rights, the share of each new owner is determined by the corresponding share of the previous owner. The owner of the apartment also cannot separate his part from the common property. A share in the common property does not exist by itself. It is inseparable from the ownership of the apartment in MKD. Accordingly, it is impossible to make a deal separately with a share.