Article 252 of the Civil Code of the Russian Federation contains the procedure for the division of property between shared owners. The procedure is carried out by agreement of the parties or by the rules of action. Consider further Art. 252 of the Civil Code of the Russian Federation with comments.
General information
Article 252 of the Civil Code of the Russian Federation determines that property held by citizens in shared ownership may be subject to separation by agreement. Any participant has the right to demand his part. If the subjects do not reach an agreement on the conditions and method of division, the dispute is considered and resolved according to the rules of action. In Art. 252 p. 3 of the Civil Code of the Russian Federation, it is established that if it is impossible to make property in kind without disproportionate damage, or it is expressly prohibited by law, the owner of this part may demand payment of its value by other participants.
Refund Specifics
Paragraph four of Art. 252 of the Civil Code of the Russian Federation (on compensation) determines that the disproportionality of the property allocated to the participant, his share is eliminated by cash payment or by other means. Reimbursement of the cost instead of providing him with part of the object in kind is allowed only with his consent. Point 4 of Art. 252 of the Civil Code of the Russian Federation describes cases when the procedure is carried out without the permission of the participant. These include situations where the share of the owner is insignificant and cannot be really allocated. In such cases, the court considering the dispute obliges other participants to reimburse him for the cost of its part. Upon receipt of compensation, the owner loses the right to his share.
Explanations
In accordance with the provisions of Article 252 of the Civil Code of the Russian Federation, in the process of dividing property between several owners, the shared right to an object is terminated. When allocating one or several parts belonging to different entities, the remaining ones continue to be in the common possession of at least two persons. The ability to satisfy the plaintiff's claims will depend on several circumstances. First of all, the characteristics of the property itself are taken into account. Technically, it should be possible to carry out the procedure described in Art. 252 of the Civil Code of the Russian Federation. In addition, participants must be prepared to pay or receive a refund of the cost of their parts.
Feature of the procedure
When applying the provisions of Article 252 of the Civil Code of the Russian Federation, judicial practice shows that the actual section is allowed if at least 2 objects independent of each other arise as a result of it. However, they must be suitable for separate operation. According to the Resolution of the Plenum of the Armed Forces of 1981, the allocation at the request of the shared owner of a part of the property belonging to him can be carried out only when it makes up an autonomous (isolated) area in the house with a separate entrance or you can turn it into one by refitting. If there are technical capabilities, but with a deviation from the size of the shares of each participant, the authorized instance, taking into account specific circumstances, has the right to reduce or increase the size of the parts provided. In this case, a monetary reimbursement is assigned for the joined areas (Clause 4, Article 252 of the Civil Code of the Russian Federation). When carrying out a section, the decision should indicate the specific isolated part that stands out. The resolution also prescribes the value of the share to which it corresponds.
Nuance
The prospect of encumbrance of any of the new objects created by the easement cannot be considered as excluding the possibility of separation / division. This interconnection of parts does not in itself mean their uninsulated use. According to the claims of the relatives of the developer, the spouses who built the house together, as well as the heirs, the court can carry out the section of the construction, unfinished construction. This is allowed if, having assessed the degree of readiness of the building, it is possible to establish the individual parts to be allocated, with the further technical possibility of completing the work by these persons. If it is not possible to carry out the partition of the house, which is not completed by construction, the court may recognize the rights of certain entities to building materials and structural elements of the structure.
Disproportionate damage
In accordance with the requirements of Art. 252 of the Civil Code of the Russian Federation, the separation / division of objects cannot be carried out if, during their physical dismemberment, they are destroyed or lose their useful properties. Disproportionate damage that impedes this procedure should be understood as the inability to use the property for its intended purpose, a significant deterioration in technical condition or a decrease in artistic / material value (for example, a collection of coins, books, paintings), inconvenience during operation, etc.
Important point
If it is impossible to divide the property or to separate part from it in kind, the entity does not lose the right to demand the determination of the procedure for using the thing, if it is not established by agreement of the parties. In this case, the court takes into account the established factual situation. The existing order may not exactly correspond to parts in the common property. In addition, the court takes into account the actual possibility of joint exploitation, the need of each subject in property.
Alternative option
It is the purpose of compensation for the value of the property. It shall be charged in case of impossibility to carry out a section / allotment in kind with respect to property. Upon receipt of payment, in accordance with paragraph fifth of Art. 252 of the Civil Code of the Russian Federation, the owner loses the right to a share. It should be noted that the authorized instance has the right to make a decision on the assignment of reimbursement of the cost against the will of owners who do not seek partition. However, this is permitted with the consent of the standout participant. In accordance with the provisions of the Decisions of the Plenums of the Armed Forces No. 6 and the EAC No. 8, these rules are subject to application when considering a dispute relating to an indivisible thing. It can be, for example, a musical instrument, a car, and so on. The exception is cases of allocation of a share of the property of peasant farms. In certain circumstances, the court has the right to transfer the indivisible object into the ownership of one of the equity participants, if it shows a significant interest in use, regardless of the size of the parts of other entities. The citizen who has accepted the thing is obliged, however, to reimburse the rest of its value.
Payout amount
If the owners do not agree on the amount of compensation, it is established by specialists engaged in appraisal activities or by a commission formed in the framework of production. When determining the amount of payment, local (retail) prices for building materials, transportation tariffs, labor costs at the rates applicable in this territory are taken into account. In addition, the level of depreciation of the object, its location, the presence of elements of improvement and other circumstances are taken into account. The calculation takes into account the costs that will need to be implemented for technical re-equipment, as well as the likely deterioration of the property. Compensation may not replace the division / allotment, but accompany them if they are possible in fact, but without observing the principles of proportionality of the resulting parts to ideal shares.
Forced refund
Art. 1 CC fixes the principle of inviolability of property. Given its absolute nature, in accordance with the general rule, coercion to receive compensation is not permitted instead of allocating part of the property in kind. However, there is an exception to this provision. It is established by paragraph four of Art. 252 of the Civil Code of the Russian Federation. In accordance with the regulation, the court considering the dispute may oblige the remaining participants in the property to pay the value of the allocated share. Compulsory compensation is allowed under the following conditions:
- A small proportion of the value of which is reimbursed.
- The inability to separate it in kind.
- Disinterest of the owner, losing the right to share, in the operation of the common object.
Objectively, only the second condition can be established.
Characteristic criteria
The insignificance of the share and the owner’s disinterest in use are determined in each case separately, taking into account the circumstances. For example, in a small apartment, even 1/4 of the part can be considered insignificant. Moreover, 1/64 of a multi-storey mansion does not fall under the criterion of insignificance. As for the owner’s disinterest, in determining it, it should be established:
- The possibility of securing a property fragment to the subject.
- The commensurability of interest with the inconvenience caused to other parties to the relationship by his participation.
- Does the person possess similar property. For example, does he have another room in which he can live.
In deciding whether there is a significant interest in the use of property, the court will examine all the evidence confirming the necessity of operating the facility due to professional activities, health status, age, dependents, and so on.
Inheritance section
Its features are fixed by Art. 1168 GK. In accordance with the norm, the hereditary mass owned by 2 or more persons can be divided by agreement. If real estate is included in it, an agreement, like an agreement on the allocation of shares, may be concluded after receiving a notarial certificate. When dividing the hereditary mass, certain privileges are provided. In particular, they are defined for the owner, who at the time of opening the case had a greater interest in the objects than the rest. For example, an entity who owned with the deceased an indivisible thing, the share of which is included in the inheritance, has the preemptive right to receive it at the expense of its part in relation to successors who were not its owners. It does not matter if the object was used last or not. The heir who constantly exploited the thing included in the mass has the preemptive right to receive it in relation to other successors who did not use it and who were not shared owners. The subject who lived at the time of the death of the original owner of the property with him, can count on the acquisition of household items.
Additionally
Disproportion of property, the receipt of which by priority shall be declared by the successor in accordance with the provisions of Art. 1168 or Art. 1169 Civil Code, with a share eliminated by the transfer of other facilities or by providing compensation. The legislation defines some features of real estate registration in the division of inheritance. It is carried out in accordance with the agreement between the successors and the notarized certificate issued. As for joint ownership, its division is carried out after determining the shares in it for each participant (Articles 252, 254 of the Civil Code of the Russian Federation).